M/s. GSL Nova Petrochemicals Ltd., Ahmedabad V. The Jt.CIT.,TDS Range, Ahmedabad

ITA 2277/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0478 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-02-2013
• Assessment Year: 2010-2011
• Appeal Filed On: 09-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2277/ AHD/2012 (ASSESSMENT YEAR 2010-11) GSL NOVA PETROCHEMICALS LTD., 396/403, MORAIYA VILLAGE, SARKHEJ BAWLA HIGHWAY, SANAND, AHMEDABAD-382210 VS. JCIT, TDS RANGE, AHMEDABAD PAN/GIR NO. : AAACN5419K (APPELLANT) .. (RESPONDENT) APPELLANT BY: MS. URVASHI SHODHAN, AR RESPONDENT BY: SHRI D K SINGH, SR. DR DATE OF HEARING: 18.02.2013 DATE OF PRONOUNCEMENT: 08.03.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) XXI, AHMEDABAD DATED 04.07.2012 FOR THE ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE IT IS MOST RESPECTFULLY SUBMITTED THAT THE LD. CIT(A) HAS ERRE D IN LAW AND ON FACTS BY CONFIRMING THE PENALTY LEVIED BY JOINT COM MISSIONER, TDS RANGE, AHMEDABAD, U/S 272A(2)(K) OF THE INCOME TAX ACT, 1961. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE IT IS MOST RESPECTFULLY SUBMITTED THAT THE LD. CIT(A) HAS ERRE D IN LAW AND ON FACTS BY NOT CONSIDERING THE PROVISO TO SECTION 272 OF THE INCOME TAX ACT WHILE PASSING THE ORDER U/S 272A(2)(K). I.T.A.NO. 2277 /AHD/200-12 2 THE LD.CIT(A) HAS FURTHER ERRED IN LAW AND FACT BY NOT CONSIDERING THE DECISION OF HON'BLE ITAT , MUMBAI IN THE CASE O F PORWAL CREATIVE VISION (P) LTD (139 TTJ(MUMBAI)L). YOUR APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR TO AMEND THE GROUNDS OF APPEAL IF OCCASION ARISES. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WA S REQUIRED TO FILE QUARTERLY STATEMENT OF TDS IN FORM 24Q, 26Q AND 27 EQ FOR ALL THE FOUR QUARTERS OF THE YEAR UNDER CONSIDERATION AND ALL TH ESE 3 QUARTERLY STATEMENTS WERE FILED LATE BY THE ASSESSEE AND THE A.O. HAS WORKED OUT THE TOTAL NUMBER OF DAYS BY WHICH THERE WAS DELAY A T 2555 DAYS AND AS PER THE PROVISIONS OF SECTION 272A(2)(K) OF THE INC OME TAX ACT, 1961, PENALTY IS IMPOSABLE TO THE EXTENT OF RS.100/DAY OF DEFAULT AND IN THIS MANNER, THE A.O. IMPOSED PENALTY OF RS.2,55,500/-. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CI T(A) BUT WITHOUT SUCCESS AND NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. IT WAS SUBMITTED BY THE LD. A.R. THAT THERE WAS REASONABLE CAUSE FOR DELAY IN FILING THESE QUARTERLY STATEMENTS BECA USE THE SOFTWARE OF THE ASSESSEE COMPANY WAS NOT WORKING PROPERLY AND THE D ELAY HAS ARISEN BECAUSE OF THIS. HER ALTERNATIVE SUBMISSION IS THI S THAT THERE WAS DELAY IN PAYMENT OF TAX ALSO AND HENCE, THE QUARTERLY STATEM ENTS COULD NOT HAVE BEEN FILED BEFORE THE PAYMENT OF TAX AND, THEREFORE , PENALTY SHOULD NOT BE CONFIRMED FOR THE PERIOD DURING WHICH EVEN THE TAX WAS NOT PAID AND THE SAME COULD BE CONFIRMED ONLY FOR THE PERIOD AFTER T HE PAYMENT OF TAX. IN SUPPORT OF THIS CONTENTION, RELIANCE WAS PLACED ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF PORWAL CREATIVE VISION (P) LTD VS ADDL. CIT AS REPORTED IN 10 TAXMAN.COM 222 (MUM.). LD. D.R. SUP PORTED THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE I.T.A.NO. 2277 /AHD/200-12 3 TRIBUNAL DECISION CITED BY THE LD. A.R. OF THE ASSE SSEE. THE CHART SHOWINGS THE DETAILS OF DUE DATE FOR FILING QUARTER LY STATEMENT AND ACTUAL DATE OF PAYMENT OF TAX ALONG WITH ACTUAL DATE OF FI LING THE STATEMENT IS SUBMITTED BY THE ASSESSEE AS PER PAGE 11 OF THE PAP ER BOOK AND THE SAME IS REPRODUCED BELOW: FORM NO. QUARTER DUE DATE CONSIDERED FOR CALCULATION DEFAULT DAYS ACTUAL DATE OF PAYMENT OF TAX DATE OF FILING 24Q Q1 15.07.2009 11.11.2009 09.07.2010 Q2 15.10.2009 11.11.2009 09.07.2010 Q3 15.01.2010 21.05.2010 09.07.2010 Q4 15.06.2010 01.06.2010 09.07.2010 26Q Q1 15.07.2009 11.11.2009 23.03.2010 Q2 15.10.2009 11.11.2009 22.03.2010 Q3 15.01.2010 21.05.2010 22.07.2010 Q4 15.06.2010 01.06.2010 24.07.2010 27EQ Q1 15.07.2009 16.11.2009 05.08.2010 Q2 15.10.2009 16.11.2009 05.08.2010 Q3 15.01.2010 21.05.2010 29.09.2010 Q4 30.04.2010 01.06.2010 04.10.2010 6. FROM THE ABOVE CHART, WE FIND THAT EVEN AFTER DA TE OF PAYMENT OF TAX, THE QUARTERLY RETURN HAD BEEN FILED MUCH LATER . THE CONTENTION THAT SOFTWARE WAS NOT WORKING PROPERLY, CANNOT BE ACCEPT ED FOR SUCH A LONG DELAY BECAUSE NOW A DAYS IF ANY SNAG DEVELOPS IN TH E SOFTWARE, THE DELAY CAN BE OF A FEW DAYS AND NOT BEYOND. OTHERWISE ALS O, WE FIND THAT MOST OF THE QUARTERLY STATEMENTS IN FORM 26Q WERE FILED IN MAR 2010 WHEREAS THE LAST QUARTERLY STATEMENT IN FORM 27 EQ NOT FILE D TILL 04.10.2010 AND HENCE, THE FACT ALSO DOES NOT SUPPORT THIS EXPLANAT ION THAT THE DELAY IS ON ACCOUNT OF SOFTWARE NON FUNCTIONING AND HENCE, THIS CONTENTION IS REJECTED. 7. REGARDING THE 2 ND CONTENTION, WE FIND THAT THIS WAS HELD BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF PORWAL CREATIVE VISION (P) LTD. (SUPRA) THAT IF THE PAYMENT COULD NOT BE MADE DUE TO FINANCIAL DIFFICULTY AND SINCE THE PAYMENT HAS NOT BEEN MADE, THE TDS RETURN COULD I.T.A.NO. 2277 /AHD/200-12 4 NOT BE FILED AS THE SAME REQUIRED DATA RELATING TO PAYMENT OF TDS AND HENCE, THE PENALTY FOR NOT FILING TDS RETURN IN TIM E SHOULD BE LEVIED ONLY FROM THE DATE OF PAYMENT OF TAX TILL THE DATE OF FI LING OF TDS RETURN. IN THE PRESENT CASE ALSO, WE ORDER ACCORDINGLY BY RESP ECTFULLY FOLLOWING THIS TRIBUNAL DECISION AND THE A.O. IS DIRECTED TO WORK OUT THE PENALTY ONLY ON THIS BASIS I.E. THE DEFAULT OF DELAY SHOULD BE WORK ED OUT FROM THE DATE OF PAYMENT OF TAX TILL THE DATE OF FILING OF TDS RETUR N. WE HOLD ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PAR TLY ALLOWED IN TERMS INDICATED ABOVE. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 22/02/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/02/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 08/03/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.8/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 08/0 3/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER.