DCIT-(TDS)-CIRCLE-1., Nagpur V. BOMBAYWALA DEPARTMENTAL STORES PVT. LTD., Nagpur

ITA 192/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1638 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Reasonable cause; Tax effect

Judgement Text

1 ITA NOS.192,193&194/NA G /2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T. A. NOS.192, 193 & 194/NAG/2014 ASSESSMENT YEAR S: 2008 - 09, 2009 - 10 & 2010 - 11. DY. COMMISSIONER OF INCOME - TAX, BOMBAYWALLA DEPARTMENTAL (TDS), CIRCLE - 1, NAGPUR. VS. STORES PVT. LTD. MAIN ROAD, SITABULDI, NAGPUR - 4400010. PANAAACB5963A. (APPELLANT) RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT BY : SHRI MUKESH AGRAWAL. DATE OF HEARING : 31 - 08 - 2015. DATE OF PRONOUNCEMENT : 11 TH SEPT. 2015. O R D E R PER BENCH: TH ESE APPEAL S BY THE REVENUE ARE DIRECTED AGAINST RESPECTIVE ORDERS OF LEARNED CIT(APPEALS) FOR THE CONCERNED ASSESSMENT YEARS. COMMON ISSUE RAISED IS THAT LEARNED CIT(APPEALS) IS NOT JUSTIFIED IN DELETING THE PENALTY U/S 272A(2)(K) OF THE INCOME - TAX ACT. 2. IN THIS CASE THE LEARN ED CIT(APPEALS) VIDE SEPARATE ORDERS HAS DELETED THE PENALTY UNDER THE AFORESAID SECTION AS UNDER : 2 ITA NOS.192,193&194/NA G /2014 ASSTT. YEAR ` PENALTY. 2008 - 09 ` 4,60,364/ - 2009 - 10 ` 4,67,483/ - 2010 - 11 ` 3,36,000/ - 3. AT THE OUTSET IN RESPECT OF ASSESSMENT YEAR 2010 - 11 IN ITA NO. 194/NAG/2014, LEARNED COUNSEL OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IS BELOW ` .4 LAKHS FIXED BY THE C.B.D.T. FOR FILING APPEALS BEFORE THE ITAT. 4. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, WE FIND THAT THIS APPEAL HAS BEEN FILED BY THE REVENUE ON 09 - 04 - 2014. HENCE AS PER THE CBDT CIRCULAR IN OPERATION FOR THE PERIOD APPEALS BEFORE THE ITAT WAS NOT TO BE FILED IF THE TAX EFFECT IS BELOW ` 4 LAKHS. IT IS SETTLED LAW THAT CBDT CIRCULARS ARE BINDING UPON THE R EVENUE. ACCORDINGLY, REVENUES APPEAL IN ITA NO. 194/NAG/2014 FOR ASSESSMENT YEAR 2010 - 11 IS DISMISSED IN LIMINE ON ACCOUNT OF TAX EFFECT. 5. FOR ASSESSMENT YEARS 2008 - 09 AND 2009 - 10, COMMON FACTS ARE THAT THERE HAS B EEN A DELAY ON THE PART OF THE ASSESSEE IN FILING THE TDS STATEMENTS ELECTRONICALLY IT IS UNDISPUTED THAT THE RELEVANT TDS WAS PROPERLY DEDUCTED AND DEPOSITED IN TIME TO THE GOVERNMENT ACCOUNT. THERE HAS BEEN DELAY IN FILING THE TDS STATEMENTS BY THE ASSE SSEE WITH THE DEPARTMENT. THE REASONABLE CAUSE FOR THE DELAY HAS BEEN ATTRIBUTED TO THE FACT THAT E FILING OF TDS RETURN HAS BEEN INTRODUCED BY THE DEPARTMENT AND THESE WERE THE INITIAL YEARS FOR THE ASSESSEE FOR FILING OF E RETURNS OF TDS STATEMENTS. THE WORK WAS ENTRUSTED TO SENIOR CHARTERED ACCOUNTANT. DUE TO NON AVAILABILITY OF PAN NO. AND MISMATCH THEREIN , THE REVENUES SOFTWARE WAS NOT ACCEPTING THE E RETURNS. THUS IT HAS BEEN PLEADED THAT THERE HAS BEEN A 3 ITA NOS.192,193&194/NA G /2014 REASONABLE CAUSE FOR THE DELAY ON THE PAR T OF THE ASSESSEE. THE ASSESSEE HAS DULY ENTRUSTED THE WORK OF E FILING TO THE PROFESSIONAL CONSULTANT. THERE HAS BEEN NO DEFAULT IN DEDUCTION OF TAX AND DEPOSIT THEREOF IN THE GOVERNMENT ACCOUNT. IN THESE CIRCUMSTANCES, THE PENALTY WHICH WAS LEVIED BY TH E AO FOR DELAY IN FILING OF TDS STATEMENT WAS DELETED BY THE LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) HAS FOUND THE REASONABLE CAUSE ATTRIBUTED FOR THE LATE FILING OF RETURN AS ACCEPTABLE. LEARNED CIT(APPEALS) ALSO PLACED RELIANCE ON CATENA OF CASE LAWS . 6. AGAINST THE ABOVE ORDERS OF LEARNED CIT(APPEALS) DELETING THE PENALTY IN THESE CASES, REVENUE IS IN APPEAL BEFORE US. 7. HAVING HEARD BOTH THE COUNSEL AND PERUSING THE RECORDS, WE NOTE THAT THERE IS NO DEFAULT IN DEDUCTION OF TAX AT SOURCE OR THE DEPOSIT THEREO F IN THE GOVERNMENT ACCOUNT. THE PENALTY HAS BEEN LEVIED ON ACCOUNT OF DELAY IN FILING THE TDS STATEMENTS ELECTRONICALLY . WE ARE OF THE CONSIDERED OPINION THAT THE REASONABLE CAUSE FOR THE DELAY FOUND BY THE LEARNED CIT(APPEALS) AS ACCEPTABLE IS SUSTAINABLE. WE ALSO NOTE THAT IT IS A PLEA OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE DELAY HAS NOT CAUSED ANY REVENUE LOSS. IN THIS REGARD WE NOTE THAT IN THE CASE OF SHAKUNTALA DEVI JAIN VS. KUNTAL KUMARI AIR 1969 (SC) 575, THE APEX COURT HAS A LSO HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVED TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHTS IN INJUSTICE BEING DONE BECAUSE OF NON - DELIBERATE DELAY. THIS IS MISTAKE OF A COUNSEL AND HIS ASSOCIATES AND IS A VALID GROUND FOR CONDONING THE DELAY. WE FURTHER NOTE THAT IN THE CASE OF HINDUSTAN STEEL LTD. VS. STATE OF ORISSA (1972) 83 ITR 23 (SC), TC 49R.330, THE HONBLE APEX COURT HAS HELD THAT THE PENALTY IS NOT LEVIABLE WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROV ISIONS OF THE I.T. ACT. 4 ITA NOS.192,193&194/NA G /2014 8. ACCORDINGLY I N THE BACKGROUND OF ABOVE DECISIONS AND PRECEDENT WE HOLD THAT LEARNED CIT(APPEALS) IS CORRECT IN DELETING THE PENALTY LEVIED IN THIS REGARD. ACCORDINGLY WE AFFIRM THE ORDER OF LEARNED CIT(APPEALS). 9 . IN THE RESULT, THESE APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF SEPT. 2015. SD/ SD/ (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 11 TH SEPT . , 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR