ITO, New Delhi V. M/s. Oriental Trimex Ltd., New Delhi

ITA 2208/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5796 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 12-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Non-deduction of tax; Reasonable cause; TDS
• Section: 273B; 133A; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 2208/DEL/2017 (ASSESSMENT YEAR: 2007-08) INCOME TAX OFFICER, WARD - 76(2), NEW DELHI VS M/S ORIENTAL TRIMEX LIMITED, 26-25, IIND FLOOR, BAZAR MARG, OLD RAJENDER NAGAR, NEW DELHI PAN-AAACO1556G APPELLANT RESPONDENT APPELLANT BY MS. RAKHI VIMAL , SR. DR RESPONDENT BY SMT. SWEETY KOTHARI , C . A . ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER DATED 27.01.2017 PASSED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-41, NEW DELHI [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESSMENT YEAR 2007-08. IN THIS APPEAL, THE TAX E FFECT IS LESS THAN THE MONETARY LIMIT FIXED BY THE CENTRAL BOARD OF DI RECT TAXES (IN SHORT CBDT) IN ITS CIRCULAR NO.17/2009 DATED 08.0 8.2019. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- (1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE PENALT Y UNDER SECTION 271C OF THE INCOME TAX ACT FOR NON-DEDUCTION OF TAX WAS NOT IMPOSABLE AS THERE WAS NO CONTUMACIOUS CONDUCT ON THE PART OF TH E ASSESSEE PARTICULARLY WHEN SUCH TAX WAS DEDUCTED AND PAID BY THE ASSESSEE WHEN THE SAME WAS POINTED OUT AND INSISTED UPON DUR ING THE COURSE OF SURVEY U/S 133A OF THE INCOME TAX ACT CARRIED OUT O N 07.03.2007 ? ITA NO: - 2208/DEL/2017 PAGE | 2 (2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE PENALT Y UNDER SECTION 271C OF THE INCOME TAX ACT FOR NON-DEDUCTION OF TAX WAS NOT IMPOSABLE ON THE REASONING THAT THERE WAS NO ADVERSE FINDING IN THIS REGARD IN THE ORDER PASSED U/S 201(1 )/201(1 A) OF THE I. T. ACT ON 16. 03.2011 PARTICULARLY WHEN THE ASSESSEE HAD NO JUSTIFICATION FOR NON-DEDU CTION OF SUCH TAX AND STARTED DEDUCTING SUCH TAX THEREAFTER ADMITTING ITS DEFAULT AND PAID SUCH TAX WITH INTEREST BEFORE 16.03.2011 ? (3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE PENALT Y UNDER SECTION 271C OF THE INCOME TAX ACT FOR NON-DEDUCTION OF TAX WAS NOT IMPOSABLE ON THE REASONING THAT THE ASSESSEE HAD DEPOSITED TDS WITHI N THE RELEVANT FINANCIAL YEAR PARTICULARLY WHEN THE SAME WAS DEPOS ITED AFTER INTRUSIVE ACTION U/S 133A OF THE INCOME TAX ACT CAR RIED OUT ON 07.03.2007 AND INSISTENCE OF THE ASSESSING OFFICER/ DEPARTMENT ? (4) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE PENALT Y UNDER SECTION 271C OF THE INCOME TAX ACT FOR NON DEDUCTION OF TAX WAS NOT IMPOSABLE ON THE REASONING THAT THE TDS DEPOSITED WITHIN THE RELEVAN T FINANCIAL YEAR COULD BE TERMED AS ONE OF THE REASONABLE CAUSES U/S 273B OF THE INCOME TAX ACT PARTICULARLY WHEN THE SAME WAS DEPOS ITED AFTER INTRUSIVE ACTION U/S 133A OF THE INCOME TAX ACT CAR RIED OUT ON 07.03.2007 AND INSISTENCE OF THE ASSESSING OFFICER/ DEPARTMENT ? (5) THAT THE ORDER OF THE CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS NEEDS TO BE VACATED AND THE ORDER OF THE JCIT BE RESTORED . [B]. AT THE OUTSET, IT WAS BROUGHT TO THE NOTICE B Y LEARNED COUNSEL FOR THE ASSESSEE, AT THE TIME OF HEARING THAT TAX E FFECT IN THIS APPEAL IS BELOW RS. 50,00,000./-. VIDE RECENT CBDT CIRCULA R NO.17/2019 DATED 08.08.2019 READ WITH EARLIER CBDT CIRCULAR NO . 3 OF 2018, DATED 11.07.2018, MINIMUM THRESHOLD LIMIT OF TAX EF FECT OF FILING OF APPEALS BY REVENUE IN INCOME TAX APPELLATE TRIBUNAL ('ITAT', FOR SHORT) HAS BEEN ENHANCED TO RS. 50,00,000/-. IN A S UBSEQUENT CLARIFICATION ISSUED BY CBDT VIDE F.NO. 279/MISC/M- 93/2018-ITJ, ITA NO: - 2208/DEL/2017 PAGE | 3 DATED 20/08/2019, IT HAS BEEN CLARIFIED BY CBDT THA T THE AFORESAID REVISED MONETARY LIMIT IS ALSO APPLICABLE TO ALL PE NDING APPEALS IN ITAT. THEREFORE, IN VIEW OF THE FOREGOING, WE ARE O F THE VIEW THAT THIS APPEAL FILED BY REVENUE IS NOT MAINTAINABLE. THE LE ARNED DEPARTMENTAL REPRESENTATIVE ALSO DID NOT PRESS THE APPEAL. ACCORDINGLY, THIS APPEAL IS DISMISSED BEING NOT PRE SSED, AND ALSO NOT MAINTAINABLE, HAVING REGARD TO AFORESAID CBDT C IRCULAR NO. 17/2019 DATED 08.08.2019 READ WITH AFORESAID CBDT C IRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESAID CLARIFICATION D ATED 20/08/2019. [C]. BEFORE LEAVING, WE CLARIFY THAT REVENUE WILL B E AT LIBERTY TO APPROACH INCOME TAX APPELLATE TRIBUNAL U/S 254(2) O F INCOME TAX ACT, 1961 SEEKING RECALL OF THIS ORDER AND, FOR RESTORATION OF THE APPEAL IF IT IS FOUND THAT THIS APPEAL OF REVENUE IS NOT COVERED BY AFORESAID CBDT CIRCULARS DATED 08.08.2019 AND 11.07.2018. [D]. IN THE RESULT, THE APPEAL BY REVENUE IS DISMI SSED. OUR DECISION WAS ORALLY PRONOUNCED IN THE OPEN COURT AF TER CONCLUSION OF HEARING ON THE DATE OF HEARING. NOW, THIS WRITTE N ORDER IS PRONOUNCED IN OPEN COURT ON 01.10.2019. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 01.10.2019 SH