ITO, Delhi V. M/s. Jai Beverage Pvt. Ltd., New Delhi

ITA 1845/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6824 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 31-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K JAIN; VIKASH SINGH
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: D: NEW DELHI) BEFORE SHRI N.K BILLAIYA, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO:- 1845/DEL/2015 (ASSESSMENT YEAR-2004-05) ITO, WARD-75(1), ROOM NO. 603, 6 TH FLOOR, AAYKAR BHAWAN, LAXMI NAGAR, DELHI-110092. VS. M/S JAI BEVERAGE PVT. LTD., 52, JANPATH, NEW DELHI-110001 PAN NO: AAACJ6275H APPELLANT RESPONDENT REVENUE BY : SH. AMIT JAIN, SR. DR ASSESSEE BY : SH. V.K. JAIN (CA) & SH. VIKASH SINGH, CA DATE OF HEARING : 11.07.2018. DATE OF PRONOUNCEMENT : 17/07/2018. ORDER PER: KULDIP SINGH, JM THE APPELLANT, ITO, DELHI-110092 (HEREINAFTER REFER RED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL, SOUGHT TO S ET ASIDE THE IMPUGNED 2 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI. ORDER DATED 19.01.2015 PASSED BY LD. CIT(A)-13, NEW DELHI, AFFIRMING THE PENALTY ORDER DATED 30.05.2013 PASSED U/S 272A(2)(K )/274 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT), QUA AS SESSMENT YEAR 2004-05, ON THE GROUNDS THAT:- 1. WHETHER ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PENA LTY AMOUNTING TO RS. 27,61,800/- LEVIED U/S 272A(2)/(K) O F THE IT ACT. 2. THE APPELLANT CRAVES LEAVES TO ADD, ALTER OR AME ND ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2 . BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE:- AFTER SURVEY PROCEEDINGS CONDUCTED U/S 133-A OF THE INCOME TAX ACT, AO NOTICED DELAY IN FILING T HE QUARTERLY RETURN OF TAX DEDUCTED AT SOURCE (TDS) AND CONSEQUENTLY PASSE D AN ORDER U/S 201(1)/201(1A) OF THE ACT, RAISING DEMAND OF RS. 12 525305/- FOR SHORT DEDUCTION OF TAX AT SOURCE. ON THE BASIS OF ORDER PASSED U/S 201(1)/201(1A) OF THE ACT, AO INITIATED THE PENALTY PROCEEDINGS U/S 272(A)(2)(K) AND SECTION 271(1)(C) OF THE ACT. DEC LINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO LEVIED THE PENALTY OF RS . 27,61,800/-U/S 272(A)(2)(K) OF THE ACT. 3 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI. 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT (A) BY WAY OF FILING THE APPEAL, WHO HAS DELETED THE PENALTY BY P ARTLY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES O F THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE. 5 . THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMPUG NED ORDER CONTENDED INTER ALIA THAT; THE IMPUGNED ORDER HAS B EEN PASSED BY THE AO BEYOND THE PRESCRIBED PERIOD OF LIMITATION U/S 275 OF THE ACT: THAT AMENDED PROVISIONS CONTAINED OF SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB SECTION (3) OF SECTION 206C ARE APPL ICABLE ONLY W.E.F. 01.04.2005. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER PASS ED BY AO. 7. UNDISPUTEDLY, AN ORDER U/S 201(1)/201(1A) OF THE A CT WAS PASSED ON 23.03.2011 AND THE PENALTY WAS INITIATED ON THE SAME DAY. IT IS ALSO NOT IN DISPUTE THAT, THE LD. CIT(A) HAS PASSED AN O RDER AGAINST THE QUANTUM APPEAL ON 27.07.2011. 4 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI. 8. WHEN WE EXAMINE THE PENALTY ORDER IN THE LIGHT OF THE AFORESAID UNDISPUTED FACTS, IT GOES TO PROVE THAT THE PENALTY ORDER PASSED ON 30/5/2013 WAS REQUIRED TO BE PASSED BEFORE 31/03/20 13 I.E. WITHIN ONE YEAR FROM THE END OF FINANCIAL YEAR IN WHICH THE OR DER OF LD. CIT(A) HAS BEEN RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSI ONER. HENCE, THE LD. CIT(A) HAS RIGHTLY HELD THAT THE IMPUGNED ORDER IS HOPELESSLY BARRED BY LIMITATION. 9. FURTHERMORE, WHEN WE PERUSE THE FACTS OF THIS CASE , IT GOES TO PROVE THAT THE AO HAS PROCEEDED TO PASS THE ORDER U /S 201(1)/201(1A) OF THE ACT, ON THE PREMISE THAT ASSESSEE WAS REQUIRED TO FILE THE RETURN OF TDS AT QUARTERLY BASIS AND APPLIED THE AMENDED PROV ISIONS CONTAINED U/S 200(3) EFFECTIVE FROM 1/4/2005, WHEREAS IN ASSESSEE S CASE WHICH PERTAINS TO FINANCIAL YEAR 2003-04 RETURN WAS TO BE FILED ON YEARLY BASIS, WHICH THE ASSESSEE HAS FILED ON 30/6/2004. 10. MOREOVER, RETURN FILED BY ASSESSEE ON-LINE HAS BEE N ACCEPTED AND COVERED U/S 206(3) OF THE ACT, SO, WHEN THERE WAS N O REQUIREMENT OF FILING THE RETURN ON QUARTERLY BASIS, PENALTY ORDER PASSED BY ASSESSING OFFICER IS NOT SUSTAINABLE IN THE EYES OF LAW AND CONSEQUENTLY , FINDING NO ILLEGALITY OR PERVERSITY OF THE FINDING RETURNED BY LD. CIT(A), T HUS, PRESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. 5 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI. ORDER PRONOUNCED IN THE OPEN COURT ON 17/7/2018 SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17.07.2018 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI. DATE OF DICTATION 12/7/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/7/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 17/7/2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 17/7/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 18/7/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 7 ITA NO.-1845/DEL/2015. M/S JAI BEVERAGE PVT. LTD., NEW DELHI.