A.C.I.T. Cir - 59,TDS,Kol., Kolkata V. M/s SDV International Logistics Ltd., Kolkata

ITA 1846/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83012 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2012
• Court: TRIBUNAL
• Department Lawyers: USMANI
• Assessee Lawyers: GAUTAM B ANERJEE

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , . . . . ! ! ! ! /AND ' #!' ' #!' ' #!' ' #!' , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] !$ / I.T.A NO.1846/KOL/2012 #% &'/ ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. M/S. SD V INTERNATIONAL LOGISTICS LTD. CIRCLE-59, TDS, KOLKATA. (PAN:AACCA6939R ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 24.07.2014 DATE OF PRONOUNCEMENT: 01.08.2014 FOR THE APPELLANT: SHRI S. H. USMANI, JCIT, SR. DR FOR THE RESPONDENT: SHRI GAUTAM BANERJEE, FCA / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF CIT(A)-1, KOLKATA IN APPEAL NO. 1163/CIT(A)-I/C-59/2011-12 DATED 04.09.2012. PENLA TY WAS LEVIED BY DCIT, CIRCLE-59, KOLKATA U/S. 221OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) FOR FINANCIAL YEAR 2007-08 VIDE HIS ORDER DATED 20.02.2012. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN RESTRICTING THE PENALTY AT 1% OF THE DEFAULT U/S. 221 OF THE ACT. F OR THIS, REVENUE HAS RAISED FOLLOWING SOLE GOUND: ON THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A)-1, KOLKATA WAS NOT JUSTIFIED IN THE DECIDING THE AMOUNT OF PENALTY DEMAND AT A LOWER RA TE WHILE THE DEFAULT IN DEPOSIT OF TAX DEDUCTED AT SOURCE HAS BEEN ESTABLISHED AT RS.32,59 ,826/-. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESEE COMPANY IS ENGAGED IN THE BUSINESS OF TRANSPORT AND LOGISTIC HAVING BRANCHES ALL OVER INDIA. IT WAS ALLEGED BY THE REV ENUE THAT THE ASSESSEE COMPANY HAS NOT DEPOSITED TAX DEDUCTED AT SOURCE OR DEDUCTED SHORT TAX TO THE TUNE OF RS.55,82,210/-. THE ASSESSEE REPLIED THAT NO SHORT DEDUCTION OF TAX AND MOREOVER, WHATEVER TAX WAS DEDUCTED, IT WAS DEPOSITED TO THE CREDIT OF CENTRAL GOVERNMENT ACCOU NT. AFTER VERIFICATION, IT WAS FOUND THAT THERE WAS A DEMAND OF INTEREST OF SHORT PAYMENT TO THE TUNE OF RS.53,366/- U/S. 201 AND 201(1A) OF THE ACT. THE ASSESSEE PAID THIS DEMAND OF INTEREST AND NO APPEAL WAS FILED. THEREAFTER, NOTICE U/S. 221 DATED 01.04.2000 WAS SE RVED ON THE ASSESSEE COMPANY FOR LATE PAYMENT OF TDS OF RS.32,59,826/- AND FINALLY PENALT Y U/S.221 WAS LEVIED BY THE AO AMOUNTING TO RS.10 LACS. AGGRIEVED, ASSESSEE PREFERRED APPEA L BEFORE CIT(A), WHO RESTRICTED PENALTY TO 1% OF DEFAULT AMOUNT AT RS.32,600/- BY OBSERVING AS UNDER: 2 ITA NO.1846/K/2012 SDV INTERNATIONAL LOGISTICS LTD. AY 08-09 AFTER CONSIDERING THE PENALTY ORDER AND THE WRITTE N SUBMISSION FILED BY THE APPELLANT, IT IS NOTICED THAT THE APPELLANT WAS IN THE BUSINESS OF T RANSPORT AND LOGISTICS HAVING BRANCHES ALL OVER INDIA AND DEDUCTED AND PAID RS.2,80,35,447 /- OF TDS TO CREDIT OF CENTRAL GOVT. AND OUT OF THIS AMOUNT HE PAID LATE AN AMOUT OF RS. 32,59,826/- AND DEPOSITED INTEREST OF RS.53,366/- U/S. 201(1A) OF THE ACT FOR THIS DEFAUL T. THE AO LEVIED PENALTY OF RS.10,00,000/- U/S. 221 OF THE I. T. ACT I.E. ABOUT 30% OF THE DEFUALT AMOUNT. THERE WERE NO INSTANCES OF SHORT DEDUCTION OF TAX OR NON-DEPOS IT OF TAX DEDUCTED AT SOURCE IN GOVT. ACCOUNT. KEEPING IN VIEW THE ABOVE CIRCUMSTANCES A ND NATURE OF DEFAULT, PENALTY LEVIED BY THE ASSESSING OFFICER U/S.221 WAS TOO HARSH AND DIS PORPORTIONATE AND THE PENALTY MAY BE RESTRICTED TO 1% OF DEFAULT AMOUNT OF RS.32,59,826/ - I.E. RS.32,600/-. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE US. 4. WE FIND THAT THE ASSESSEE DURING FY 2007-08 RELE VANT TO AY 2008-09 PAID A SUM OF RS.2,80,35,448/- AS TDS TO THE CREDIT OF CENTRAL GO VERNMENT AND OUT OF THIS AMOUNT, IT WAS ALLEGED BY THE REVENUE THAT THE SUM OF RS.32,59,836 /- WAS LATE PAYMENT. BUT AS PER THE REVENUE CONTENTION ALSO THE SHORT PAYMENT WAS TO T HE EXTENT OF RS.9,66,057/-, WHICH COMES TO ABOUT 3% OF THE TOTAL TDS DEDUCTED AND PAID TO THE CENTRAL GOVT. BY THE ASSESSEE. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 221 OF THE A CT AND FIND THAT THERE IS NO PRESCRIPTION OF MINIMUM PENALTY BUT ONLY MAXIMUM PENALY IS PRESCRIB ED. EVEN BEFORE US NOW, THE REVENUE COULD NOT SUBSTANTIATE HOW THE RESTRICTION BY CIT(A ) OF PENALTY AT 1% IS ABNORMAL. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND WE CON FIRM THE SAME. APPEAL OF REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER PRONOUNCED IN OPEN COURT ON 01.08.2014. SD/- SD/- , . . . . , ' #!' ' #!' ' #!' ' #!' , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 ST AUGUST, 2014 -. #/0 #1 JD.(SR.P.S.) 2 +##3 43&5- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT ACIT, CIRCLE-59, TDS KOLKATA 2 +,)* / RESPONDENT M/S. SDV INTERNATIONAL LOGISTICS LTD., 7, KYD STREET, KANKARIA COURT, 5 TH FLOOR, KOLKATA-16. 3 . # ( )/ THE CIT(A), KOLKATA 4. 5. # / CIT KOLKATA 3:#; +# / DR, KOLKATA BENCHES, KOLKATA ,3 +#/ TRUE COPY,