M/s. District Manager, Kaithal V. JCIT (TDS), Karnal

ITA 2040/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7386 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PERMIL GOYAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B, NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.2040/DEL/2014 (ASSESSMENT YEAR 2009-10) DISTRICT MANAGER, VS. JCIT (TDS) HAFED, KAITHAL KARNAL GIR / PAN :RTKHO 1795D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PERMIL GOYAL, ADV. RESPONDENT BY :SHRI ANIL KUMAR SHARMA, SR. DR DATE OF HEARING: 16.08.2016 DATE OF PRONOUNCEMENT: 17.08.2016 ORDER PER N. K. CHOUDHRY, JM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 09.09.2013 PASSED BY CIT(A) KARNAL FOR THE ASSESSMENT YEAR 2009-10 ON THE GROUND THAT THE PENALTY IMPOSED ON ACCOUNT OF SHORT DEDUCTION IS TI ME BARRED, ILLEGAL AND ARBITRARY. 2. THE BRIEF FACTS OF THE CASE ARE THAT TDS INSPECT ION WAS CARRIED OUT ON 22.09.2009. IT WAS NOTED BY THE TDS OFFICER THAT THE DEDUCTOR ASSESSEE HAD PAID COMMISS ION TO VARIOUS COOPERATIVE SOCIETIES AND DEDUCTED TDS @ 5. 33% AGAINST THE APPLICABLE RATE O 10.30% IN THIS YEAR O N THE COMMISSION PAYMENT. ACCORDINGLY DEMAND OF R.1,46,918/- WAS CREATED ON ACCOUNT OF SHORT DEDUCT ION OF TAX AT SOURCE AND PENALTY PROCEEDINGS U/S 271C O F THE ACT WERE INITIATED. JCIT, TDS RANGE, KARNAL HAS IM POSED 2 I.T.A.NO.2040/DEL/2014 PENALTY @ 100% AT RS.1,46,918/- FOR SHORT TDS PAID BY THE APPELLANT, WHICH WAS BEEN CONFIRMED BY LD. CIT( A), KARNAL VIDE IMPUGNED ORDER DATED 09.09.2013. 3. AGGRIEVED BY THE IMPUGNED ORDER OF LD. CIT(A), ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL AND SUBM ITTED THAT THE APPELLANT IS A GOVERNMENT ORGANIZATION AND HAS NO INTENTION TO CONCEAL THE FACTS. IT WAS BONA FID E MISTAKE IN DEDUCTING TDS @ 5% INSTEAD OF 10% AND THE APPELL ANT HAS ALREADY DEPOSITED THE DIFFERENCE OF TDS. APPE LLANT FURTHER SUBMITTED THAT SIMILAR ISSUE HAS BEEN DEALT WITH BY ITAT IN CASE OF CIT VS BANK OF NOVA SCOTIA AND V IDE ORDER DATED 31.03.2006, IT OBSERVED AS UNDER: 11 WE HAVE CAREFULLY CONSIDERED SUBMISSIONS. IN T HE INSTANT CASE DEALING WITH COLLECTION OF TAX U/S COMPENSATORY INTEREST U/S 201 (1A), THE ASSESSEE IS THAT THESE AMOUNTS BEEN PAID SO AS TO END DISPUTE WITH THE PRESENT APPEALS WE ARE CONCERNED THE RIVAL WE ARE NOT 201 (1) OR THE CASE OF HAVE ALREADY REVENUE. IN WITH LEVY OF PENALTY U/S 271-C FOR WHIC H IT IS NECESSARY TO ESTABLISH THAT THERE WAS CONTUMACIOUS CONDUCT ON THE PART OF THE ASSESSEE. W E FIND THAT ON SIMILAR FACTS HON'BLE DELHI HIGH COURT HAD DELETED LEVY OF PENALTY U/S 271-C IN THE CASE OF M/ S. ITOCHU CORPORATION, REPORTED IN 268 ITR 172 (DEL) A ND IN THE CASE OF CIT VS. MITSUI & COMPANY LTD. REPORT ED IN 272 ITR 545. RESPECTFULLY FOLLOWING THE AFORESAI D JUDGMENTS OF HONBLE DELHI HIGH COURT AND THE DECISION OF THE 'ITAT, DELHI IN THE CASE OF TELEVIS ION EIGHTEEN INDIA LTD., WE ALLOW THE ASSESSEE'S APPEAL AND CANCEL THE PENALTY AS LEVIED U/S 271-C.' 3.1 IN CIVIL APPEAL NO.1704 OF 2008, HON'BLE HIGH C OURT IN THE ABOVE CASE HAS CONFIRMED THE ORDER OF ITAT A ND 3 I.T.A.NO.2040/DEL/2014 DISMISSED THE APPEAL OF THE REVENUE DELETING THE PE NALTY IN QUESTION. 4. LD. D.R. RELIED UPON THE ORDER OF LD. CIT(A) AND DOES NOT RAISE ANY SERIOUS OBJECTION IN FOLLOWING THE PR INCIPLES LAID DOWN BY HON'BLE JURISDICTIONAL HIGH COURT ON T HE ISSUE. 5. RESPECTFULLY FOLLOWING THE PRECEDENT LAID DOWN B Y HON'BLE JURISDICTIONAL HIGH COURT, EVEN OTHERWISE, THE APPELLANT HAS ALREADY DEPOSITED DIFFERENCE OF TDS, HENCE WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY L D. CIT(A). 6. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH AUG., 2016. SD./- SD./- (R. S. SYAL) (N. K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 2016 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER AR (ITAT, NEW DELHI) 4 I.T.A.NO.2040/DEL/2014 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 16/8 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16,17/8 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 17/8/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 17/8 SR. PS/PS 7 FILE SENT TO BENCH CLERK 17/8 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER