SHRI VINAY D. NARKAR, MUMBAI V. ADDL. CIT TDS, THANE

ITA 2181/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0316 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 09-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV GUBGAOTRA
• Keywords: Reasonable cause; TDS
• Section: 273B; 274; 27

Judgement Text

F IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI C.N PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.2181/ MUM/2018 ( / ASSESSMENT YEAR: 2012 - 13) SHRI. VINAY D. NARKAR, 1/3, JAMES HOUSE, B - WING, DSOUZA WADI, WAGLRE ESTATE, SHIVAJI NAGAR ROAD N O. 3, THANE - 400604 / V. A DDL. CIT (TDS), GROUND FLOOR, QU R ESHI MANSION, GOKHALE ROAD, NAUPADA, THANE - WEST, THANE - 400602 ./ PAN : AESPN7371K ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: NONE REVENUE BY: SHRI. RAJIV GUBGAOTRA (DR) / DATE OF HEARING : 13.06.2019 / DATE OF PRONOUNCEMENT : 01 .0 7 .2019 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS APPEAL, FILED BY ASSESSEE, BEING ITA NO. 2181/MUM/2018 , IS DIRECTED AGAINST APPELLATE ORDER DATED 20.11.2017, PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 2, PUNE (HEREINAFTER CALLED THE CIT(A ) IN APPEAL NUMBER PN/CIT(A) - 2/ACIT TDS RG/THN/77 & 78/2017 - 18(OLD APPEAL NUMBER THN/CIT(A) - 2/ACIT TDS RG/THN/1278 & 1279 /2013 - 14) FOR ASSESSMENT YEAR 2012 - 13 , THE APPELLATE PROC EEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM PENALTY I.T.A. NO.2181/MUM/2018 2 | P A G E ORDER DATED 18.11.2013 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 272A(2)(K) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) FOR AY 2012 - 13 . 2. T HE GROUNDS OF APPE AL RAISED BY A SSESSEE IN MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE LEVY OF PENALTY U/S. 272A(2)(K) AGGREGATING TO RS. 42,500/ - BEING RS. 20,000/ - FOR QUARTER 1 AND RS. 22,500/ - FOR QUARTER 2 OF F.Y. 2011 - 12. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE AS SESSEE HAS FILED THIS APPEAL WITH TRIBUNAL LATE BY 1 DAY BEYOND THE TIME STIPULATED U/S. 253(3) OF THE 1961 ACT. PRAYERS ARE MADE TO CONDONE THIS DELAY OF 1 DAY VIDE WRITTEN LETTER DATED 09.04.2018 FILED WITH TRIBUNAL WHICH IS PLACED IN FILE, EXPLAINING THAT THE ASSESSEE IS AN INDIVIDUAL NOT WELL VERSED WITH LEGAL STIPULATIONS AND THIS DELAY OF 1 DAY IN FILING THIS APPEAL WITH TRIBUNAL WAS UNINTENTIONAL AND ALSO THAT THERE WAS GAP IN COMMUNICATION OF THE ASSESSEE WITH ITS CONSULTANT WHICH LED T O A DELAY OF ONLY 1 DAY IN FILING THIS APPEAL LATE WITH THE TRIBUNAL. THE ASSESSEE DID NOT APPEARED BEFORE THE TRIBUNAL ON 13.06.2019,WHEN THIS APPEAL WAS CALLED FOR HEARING BEFORE THE BENCH . WE HEARD LEARNED DR. IN THE INTEREST OF SUBSTANTIAL JUSTICE AND KEEPING IN VIEW THAT THIS IS AN INSIGNIFICANT DELAY OF 1 DAY IN FILING THIS APPEAL LATE WITH TRIBUNAL BEYOND TIME STIPULATED U/S 253(3) OF THE 1961 ACT, WE ARE HEREBY CONDONING THE DELAY OF 1 DAY IN FILING THIS APPEAL LATE WITH TRIBUNAL BEYOND TIME STIPULA TED U/S 253(3) OF THE 1961 ACT AS THE ASSESSEE HAS SET OUT SUFFICIENT CAUSE FOR CONDONING THIS DELAY OF ONLY 1 DAY VIDE WRITTEN PRAYERS WHICH ARE PLACED IN FILE . WE ARE GUIDED BY DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MST. I.T.A. NO.2181/MUM/2018 3 | P A G E KATIJI (1987) 167 ITR 471(SC) IN THIS REGARD AS TO WHEN TECHNICALITIES ARE PITTED AGAINST SUBSTANTIAL JUSTICE , THE COURTS WILL LEAN TOWARDS ADVANCING SUBSTANTIAL JUSTICE UNLESS MALICE IS AT WRIT LARGE . WE DONOT SEE ANY MALICE ON PART OF THE ASSES SEE IN FILING THIS APPEAL LATE BY 1 DAY BEYOND TIME STIPULATED U/S 253(3) OF THE 1961 ACT AS THE ASSESSEE DID NOT STAND TO GAIN ANY THING BY FILING THIS APPEAL LATE WITH INSIGNIFICANT DELAY OF DAY. THUS, WE CONDONE THE DELAY OF 1 DAY IN FILING THIS APPEAL LATE BEYOND TIME STIPULATED U/S 253(3) OF THE 1961 ACT AND ADMIT THIS APPEAL. WE ORDER ACCORDINGLY. 3.2 THE ASSESSEE IS HOLDING INCOME - T AX DEDUCTION A CCOUNT N UMBER(TAN) PNEV0 7443C ALLOTTED BY INCOME TAX DEPARTMENT.THE ASSESSEE BEING DEDUCTOR OF INCOME - T A X AT SOURCE HAS DELAYED FILING OF QUARTERLY STATEMENT OF INCOME - TAX DEDUCTED AT SOURCE(TDS) U/S. 200(3) OF THE 1961 ACT, AS PR OVIDED UNDER RULE 31A OF INCOME - T AX RULES, 1962 AS UNDER: - 1 2 . T H E 3.3 SINCE THERE WAS A DELAY IN FIL ING OF QUARTERLY STATEMENT OF TDS IN FORM NO. 2 6 Q FOR FINANCIAL YEAR 2011 - 12 FOR QUARTER 1 AND 2 AS DETAILED ABOVE IN CHART , T HE AO INVOKED PROVISION S OF S ECTION 272A(2)(K)/274 R.W.S. 200(3) OF THE 1961 ACT FOR LEVYING PENALTY U/S. 272A(A)(K) OF THE 1961 ACT, VIDE NOTICES DATED 02.08.2013 ISSUED TO THE ASSESSEE FOR DELAY IN SUBMITTING QUARTERLY TDS STATEMENTS IN FORM NO. 26Q FOR Q1 AND Q2 OF FINANCIAL Y EAR 2011 - 12 , BUT THE ASSESSEE TAX MAX. SR. FORM QRTR. F.Y . RRR NO. DUE DATE DATE OF DEL AMOUNT PENALTY NO. NO. FILING AY DEDUCTED LEVIABLE (IN RS) (IN RS) 1, 26Q Q1 2011 - 12 30500500636023 I 15 - 07 - 11 04 - 08 - 12 386 20000 20000 2. 26Q Q2 2011 - 12 30500500636034 | 15 - 10 - 11 04 - 08 - 12 294 22500 22500 TOTAL 42500 I.T.A. NO.2181/MUM/2018 4 | P A G E DID NOT REPLY TO THE SAID NOTICE , WHICH LED AO TO LEVY PENALTY TO THE TUNE OF RS. 42,500/ - U/S. 272A(2)(K)/274 R.W.S. 200(3) OF THE 1961 ACT AGAINST ASSESSEE , FOR DELAY IN FILING QUARTERLY STATEMENT IN FORM NO. 26Q FOR Q1 AND Q 2 FOR FINANCIAL YEAR 2011 - 12, VIDE PENALTY ORDERS DATED 18.11.2013 PASSED BY THE AO. 4 . THE ASSESSEE BEING AGG RIEVED BY LEVY OF PENALTY BY THE AO VIDE ORDERS DATED 18.11.2013 PASSED U/S 272A(2)(K) OF THE 1961 ACT READ WITH SECTION 200(3) AND 274 OF THE 1961 ACT, FILED FIRST APPEAL WITH LEARNED CIT(A) AND EXPLAINED THAT ASSESSEE HAS DEDUCTED INCOME - TAX AT SOUR CE FOR Q UARTER 1 AND 2 FOR FY 2011 - 12 WHICH WAS DULY DEPOSITED WITH TREASURY OF GOVERNMENT OF INDIA WITHIN STIPULATED TIME AS PRESCRIBED BY LAW , BU T DUE TO SOME PERSONAL AND CIRCUMSTANCES AS TO THE CONFUSION BETWEEN ASSESSEE AND ITS REPRESENTATIVES , THE QUARTERLY TDS STATEMENTS COULD NOT BE FILED IN TIME. IT WAS EXPLAINED BY ASSESSEE BEFORE LEARNED CIT(A) THAT ONLY DUR ING THE COURSE OF AUDIT, THIS M ISTAKE WAS FOUND OUT AND IMMEDIATELY ON REALISING THE SAME , THE ASSESSEE TOOK THE ACTION AND FILED ITS RETURN OF TDS WITH THE DEPARTMENT. THIS EXPLANATION SUBMITTED BY ASSESSEE HOWEVER DID NOT FOUND FAVOUR WITH LD. CIT(A) WHO WAS PLEASED TO CONFIRM ORDE R OF AO LEVYING PENALTY U/S 272A(2)(K) READ WITH SECTION 274 AND 200(3) OF THE 1961 ACT, VIDE APPELLATE ORDER DATED 20.11.2017 PASSED BY LEARNED CIT(A) . 5 . NOW THE ASSESSEE HAS FILED AN APPEAL BEFORE TRIBUNAL BEING AGGRIEVED BY APPELLATE ORDER PASSED BY LE ARNED CIT(A) . THE ASSESSEE DID NOT APPEAR BEFORE THE TRIBUNAL WHEN THIS APPEAL WAS CALLED FOR HEARING ON 13.06.2019 AND LD. DR SUBMITTED THAT WHEN SHOW CAUSE NOTICE WAS ISSUE D TO THE ASSESSEE BY THE AO, T HE ASSESSEE CHOOSE NOT TO FILE ANY REPLY BEFORE THE AO BUT HOWEVER LD. DR FAIRLY CONFIRMED THAT TDS WAS DULY PAID AND DEPOSITED BY ASSESSEE WITH GOVERNMENT TREASURY TO THE CREDIT OF CENTRAL GOVERNMENT IN TIME AS PRESCRIBED BY LAW , BUT HOWEVER TDS QUARTERLY STATEMENTS IN FORM NO. 26Q FOR Q1 I.T.A. NO.2181/MUM/2018 5 | P A G E AND Q2 OF FY 2 011 - 12 WERE FILED LATE BY AS MUCH AS 386 AND 294 DAYS BEYOND STATUTORY TIME LIMIT . 6 . WE HAVE CONSIDERED THE CONTENTION S OF LD. DR AND ALSO PERUSED THE MATERIAL ON RECORD. IT IS NOW ADMITTED POSITION THAT ASSESSEE HAS DEDUCTED INCOME - TAX AT SOURCE UNDER CH APTER X V II - B OF THE 1961 ACT FOR Q UARTER 1 AND 2 OF FY 2011 - 12 WHICH WAS DULY DEPOSITED BY ASSESSEE IN GOVERNMENT TREASURY TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN TIME PRESCRIBED UNDER LAW. THUS SO FA R AS DEPOSIT OF INCOME - TAX DEDUCTED AT SOURCE IS CONCERNED , CENTRAL GOVERNMENT HAS DULY RECEIVED THE MONEY DEDUCTED BY THE ASSESSEE AS TDS TO IT IS CREDIT , BUT THERE IS DELAY IN FILING OF TDS QUARTERLY STATEMENTS IN FORM NO. 26Q FOR Q1 AND Q2 FOR FINANCIAL YEAR 2011 - 12 BY AS MUCH AS 386 AND 294 DAYS B Y THE ASSESSEE. THE AO INVOKED PROVISIONS OF SECTION 272A(2)(K) OF THE 1961 ACT AND LEVIED PENALTY OF RS. 42,500/ - FOR SUCH DELAY IN FILING OF PRESCRIBED QUARTERLY STATEMENTS IN FORM NO. 26Q FOR Q1 AND Q2 OF FY 2011 - 12 , WHICH PENALTY WAS ALSO AFFIRMED BY LEARNED CIT(A). WE HAVE OBSERVED THAT PROVISIONS OF SECTION 272A(2)(K) OF THE 1961 ACT ARE SUBJECT TO PROVISIONS OF SECTION 273B OF THE 1961 ACT AND IF THE TAX - PAYER BRINGS OUT REASONABLE CAUSE FOR DELAY IN FILING OF QUARTERLY STATEMENTS OF TDS , T HE TAX - PAYER WILL BE OUT OF CLUTCHES OF PENALTY PROVISION U/S 272A(2)(K). W E HAVE SEEN ABOVE THAT ASSESSEE DEDUCTED INCOME - TAX AT SOURCE UNDER CHAPTER XVII - B FOR Q UARTER 1 AND 2 FOR FY 2011 - 12 WHICH WAS DULY DEPOSITED IN TIME TO THE CREDIT OF CENTRAL GOVERNMEN T BY THE ASSESSEE. THUS , IT COULD BE SAID THAT THE ASSESSEE DID NOT MADE ANY FINANCIAL GAIN AS THE INCOME - TAX DEDUCTED AT SOURCE BY THE ASSESSEE FROM PAYMENTS MADE TO DEDUCTEE S STOOD DEPOSITED WITH GOVERNMENT TREASURY TO THE CREDIT OF CENTRAL GOVERNMENT IN TIME WITHIN TIME STIPULATED UNDER STATUTE. HOWEVER, ADMITTEDLY THERE WAS A DELAY IN FILING OF QUARTERLY STATEMENT TDS BY THE ASSESSEE IN FORM NO. 26Q FOR Q1 AND Q2 OF FINANCIAL YEAR 2011 - 12 WHICH DELAY WAS AS MUCH AS 386 AND 294 DAYS RESPECTIVELY . THERE IS ABSOLUTELY NO IOTA OF DOUBT THAT BY FILING THE S E QUARTERLY STATEMENT OF I.T.A. NO.2181/MUM/2018 6 | P A G E TDS LATE , THERE HAS BEEN AN EXTRA WORK LOAD ON THE DEPARTMENT TO GIVE CREDIT OF TDS TO THE VARIOUS DEDUCTEE AS WELL THE DEDUCTEE S ON WHOSE B EHALF THIS INCOME - TAX WAS DEDUCTED AT SOURCE WERE ALSO MADE TO SUFFER INCONVENIENCE DUE TO THESE DELAYED CREDIT OF TDS TO DEDUCTEES OWING TO LATE FILING OF QUARTERLY STATEMENT OF TDS BY THE ASSESSEE . THE ASSESSEE IS AN INDIVIDUAL AND TOTAL TDS DEDUCTIONS WERE SMALL AMOUNT OF RS. 20000 - 22500/ - PER QUARTER SO FAR AS COVERED TO BE CAPTURED IN FORM NO. 26Q WHICH ARE MAINLY TDS SUCH AS PAYMENTS TO CONTRACTORS, PROFESSIONALS, RENT ETC WHICH ARE OTHER THAN SALARIES. THE ASSESSEE HAS ALSO CO ME OUT WITH AN EXPLANATION THAT THERE WAS SOME MISCOMMUNICATION BETWEEN ASSESSEE AND ITS REPRESENTATIVES WHICH LED TO NON FILING OF QUARTERLY STATEMENT OF TDS IN FORM NO. 26Q FOR THESE QUARTERS VIZ. Q1 AND Q2 OF FY 2011 - 12 . THE ASSESSEE HAS CLAIMED THAT LATER DURING THE COURSE OF AUDIT, IT WAS FOUND OUT THAT INADVERTENTLY THE S E QUARTERLY STATEMENT S OF TDS IN FORM NO. 26Q FOR Q1 AND Q2 OF FY 2011 - 12 WERE NOT FILED. THE ASSESSEE HAD CLAIMED THAT IT TOOK IMMEDIATELY STEPS BY FILING ITS TDS RETURN S FOR Q1 AND Q2 FOR FY 2011 - 12 IN FORM NO. 26Q WHICH STOOD FILED ON 04.08.2012 . THIS FACT IS ALSO EMANATING FROM THE RECORDS IN THE CHART ABOVE THAT DUE DATE FOR FURNISHING OF THESE QUARTERLY STATEMENT OF TDS IN FORM NO. 26Q FOR Q UARTER 1 WAS 15 TH JULY 2011 AND FOR QUARTER 2 , THE D UE DATE WAS 15 TH OCT OBER 2011. B OTH THE AFORESAID QUARTERLY STATEMENTS WERE FILED ON 4 TH AUG 2012. THE ASSESSEE IS AN INDIVIDUAL AND FOR FY 2011 - 12 VIZ. AY 2012 - 13 , THE DUE DATE FOR FILING OF INCOME - T AX RETURN BY INDIVIDUAL WAS 31.07.2012. SO THESE QUAR TERLY STATEMENTS OF TDS WERE FILED ON 4 TH AUG, 2012 , THUS ON TOUCHSTONE OF PREPONDERANCE OF PROBABILITIES , THE DEFENCE S RAISED BY ASSESSEE APPEARS TO BE AN HONEST AND BONAFIDE EXPLANATION WHICH KEEPING IN VIEW ENTIRE FACTUAL MATRIX OF THE CASE AS WE HAVE DETAILED ABOVE IN THIS ORDER , WE ACCEPT EXPLANATION (S) OFFERED BY ASSESSEE AS REASONAB LE WITHIN THE PARAMETERS OF PROVISION S OF SECTION 273B OF THE 1961 ACT AND WE HEREBY ORDER DELETION OF PENALTY OF RS. 42,5 00 / - AS LEVIED BY THE AO FOR Q UAR TER 1 AND 2 OF FY 2011 - 12 U/S 272A(2)(K) OF THE 1961 ACT FOR DELAY IN FILING OF QUARTERLY STATEMENT I.T.A. NO.2181/MUM/2018 7 | P A G E OF TDS IN FORM NO. 26Q . THUS , APPEAL OF THE ASSESSEE STAND ALLOWED AND THE PENALTY OF RS. 42,500/ - AS LEVIED BY THE AO U/S 272A(2)(K) READ WITH SECTION 27 4 AND 200(3) OF THE 1961 ACT STAND DELETED. WE ORDER ACCORDINGLY. 7 . IN THE RESULT, T HE APPEAL OF THE ASSESSEE IN ITA NO.2181/MUM/2018 FOR AY 2012 - 13 STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1 .07 .2019. 0 1 .07 .2019 S D / - S D / - ( C.N PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 1 .0 7 .2019 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI