PLR Projects Private Limited, Hyderabad V. Asst. Commissioner of Income Tax (TDS), Circle-2(1), Hyderabad

ITA 2409/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6343 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2011-2012
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H PHANI RAJU
• Keywords: Opportunity of being heard; Reasonable cause; TDS
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO S . 2408, 2409, 2411, 2412, & 2413 / HYD/201 8 A . Y S. : 20 10 - 11, 2011 - 12, 2014 - 15, 2015 - 16 & 2016 - 17 PLR PROJECTS PVT. LTD., , HYDERABAD. PAN A ADCP 9069L VS. ASST. COMMISSIONER OF INCOME - TAX (TDS), CIRCLE 2(1), HYDERABAD APPELLANT RESPONDENT ASSESSEE BY: S H RI PAWAN KUMAR CHAKRAPANI REVENUE BY: S HRI H. PHANI RAJU DATE OF HEARING: 24 / 0 4 / 201 9 DATE OF PRONOUNCEMENT: 26 / 0 4 /201 9 O R D E R PER BENCH: ALL THESE APPEALS PERTAIN TO SAME ASSESSEE ARE DIRECTED AGAINST A COMMON ORDER OF CIT(A) 8 , HYDERABAD, DATED, 26 / 1 0 /201 8 FOR A YS 2010 - 11 & 2011 - 12 AND 2014 - 15 TO 2016 - 17. AS IDENTICAL ISSUE IS INVOLVED IN THESE APPEALS, THE SAME WERE CLUBBED AND HEARD TO GETHER AND, THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS OF THE CASE ARE, THE AO OBSERVED THAT THERE WAS A CONSOLIDATED OUTSTANDING DEMAND FOR THE AYS 2009 - 10 TO 2011 - 12 & 2013 - 14 TO 2017 - 18 AMOUNTING TO RS. 78,18,118/ - . THEREFORE, HE ISSUED NOTICES, INTIMATING THE ASSESSEE THAT THE TOTAL OUTSTANDING DEMAND FOR THE SAID YEARS WAS RS. 78,18,118/ - AND WAS ASKED TO SHOW CAUSE AS TO WHY THE PENALTY U/S 221(1) SHOULD NOT BE LEVIED. SINCE THE ASSESSEE NEITHER FILED ANY RECTIFICATION PETITION FOR REDUCING I.T.A. NO. 2408 AND OTHERS /HYD/1 8 PLR PROJECTS PVT. LTD., HYD. 2 THE DEMAND NOR PAID THE OUTSTANDING DEMAND, THE AO CONCLUDED THAT THE ASSESSEE F AILED TO SHOW ANY REASONABLE CAUSE FOR NOT PAYING THE OUTSTANDING DEMAND, HENCE, HE LEVIED PENALTY @ 10% OF THE OUTSTANDING DEMANDS IN RESPECT OF EACH YEAR FROM 2009 - 10 TO 2017 - 18. 3. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). EVEN BEFORE THE CIT(A), ASSESSEE FAILED TO SUBSTANTIATE OR FILED ANY SUBMISSION EVEN THOUGH LD. CIT(A) HAS GIVEN SEVERAL OPPORTUNITIES. FINALLY, HE CONFIRMED THE PENALTY LEVI ED BY THE AO. 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN ALL THE APPEALS UNDER CONSIDERATION , EXCEPT THE QUANTUM OF PENALTY LEVIED : 1. THE ORDER OF THE LEARNED A UTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES AND THE FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO PENALTY UNDER SECTION 221(1) OF THE A CT, OF AN AMOUNT BEING RS. 39,297/ - , UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 221(1) OF THE ACT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIFIED IN NOT CONSIDERING THE FACT THAT THE APPELLANT WAS NOT PROVIDED WITH THE BIFURCATION OF TAX, INTEREST AND OTHER AMOUNTS AND LEVYING PENALTY OF 10% ON THE TOTAL AMOUNT OUTSTANDING, UNDER THE FACTS AND CIRCUMSTANC ES OF THE CASE. 5. WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIFIED IN LEVYING PENALTY @10% ON THE TOTAL AMOUNT OUTSTANDING WHICH INCLUDES INTEREST AND OTHER FEES APART FROM TAX DUE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. I.T.A. NO. 2408 AND OTHERS /HYD/1 8 PLR PROJECTS PVT. LTD., HYD. 3 6. WITHOUT PREJUDI CE TO THE ABOVE, WHETHER THE LEARNED AUTHORITIES BELOW ARE CORRECT IN NOT RESTRICTING THE PENALTY @10% ONLY ON TAX DUE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 7 . WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIFIED EVEN WHEN THE APPELLANT HAS PROV ED THAT THE DEFAULT 'WAS FOR GOOD AND SUFFICIENT REASON, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 9. IN THE VIEW OF THE ABOVE AND OTHER GROU NDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUITY. 5. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT AO FOUND THA T ASSESSEE HAS NOT REMITTED THE TAX OUTSTANDING. EVEN THOUGH, AO ISSUED SEVERAL NOTICES, BUT, ASSESSEE HAS NOT AVAILED THE OPPORTUNITY TO EXPLAIN THE SUFFICIENT REASONS FOR SUCH PENDING TAXES. AO LEVIED PENALTY U/S 221(1) OF THE ACT. EVEN BEFORE THE C IT(A), ASSESSEE FAILED TO MAKE SUBMISSION, EVEN THOUGH, CIT(A) HAS GIVEN SEVERAL OPPORTUNITIES. BEFORE US, LD. AR SUBMITTED THAT AO WAS NOT EXPLAINED ABOUT THE BREAK - UP OF THE DUES, CAN THE PENALTY BE LEVIED ON TOTAL OUTSTANDING WITHOUT RESTRICTING IT TO O NLY TAX DUES. HE PRAYED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO ASSESSEE SO THAT ASSESSEE CAN EXPLAIN THE GOOD AND SUFFICIENT REASONS TO AO. AFTER CONSIDERING THE SUBMISSION OF ASSESSEE, WE ARE OF THE VIEW THAT PENALTY CANNOT BE LEVIED WITHOUT GIVING PR OPER/REASONABLE OPPORTUNITY TO ASSESSEE. IN THIS REGARD, ASSESSEE NEVER MADE ANY REPRESENTATION BEFORE ANY AUTHORITY, EVEN THOUGH, TAX AUTHORITIES WERE CONSIDERATE AND GIVEN SEVERAL OPPORTUNITIES TO THE ASSESSEE. SINCE, THIS ISSUE IS RELATING TO PENALTY, W E DEEM IT FIT TO GIVE ONE MORE OPPORTUNITY TO ASSESSEE. THEREFORE, WE DIRECT THE AO TO GIVE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE I.T.A. NO. 2408 AND OTHERS /HYD/1 8 PLR PROJECTS PVT. LTD., HYD. 4 ASSESSEE ALSO DIRECTED TO SUBMIT RELEVANT INFORMATION BEFORE THE AO REGARDING THE SUFFICIENT REASONS AS TO WHY PENALTY U/S 221(1) CANNOT BE LEVIED. AO IS DIRECTED TO COMPLETE THE PROCEEDINGS AS PER LAW. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES, IN ALL THE APPEALS UNDER CONSIDERATION. 6. IN THE RESULT, ALL THE AP PEALS UNDER CONSIDERATION ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 26 TH APRIL , 201 9. SD/ - ( P. MADHAVI DEVI ) J ` UDICIAL MEMBER SD/ - ( S. RIFAUR RAHMAN ) ACCOUNTANT MEMBER HYDERABAD, DATED 26 T H APRIL , 201 9. KV COPY FORWARDED TO: 1. M/S PLR PROJECTS PVT. LTD., #3B, 3 RD FLOOR, PLOT NO. 130, INWINEX TOWERS, ROAD NO. 2, BANJARA HILLS, HYDERABAD - 34 2 . AC IT (TDS) , CIRCLE 2(1) , HYD . 3 . CIT (A) - 8 , HYDERABAD 4. CIT (TDS) , HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE