M/s. Setu Ahmednagar, Ahmednagar V. Addl. Commissioner of Income tax, (TDS), Pune

ITA 2466/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4795 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 24-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARI KRISHAN
• Keywords: Principle of natural justice; TDS
• Section: 274; 64

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI GEORGE MATHAN, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.2466/PUN/2017 / ASSESSMENT YEAR : 2011-12 M/S. SETU AHMEDNAGAR, COLLECTOR OFFICE, GPO ROAD, AHMEDNAGAR 414001. PAN : PNES22533A. . / APPELLANT V/S THE ADDL. COMMISSIONER OF INCOME TAX (TDS), PUNE SATARA ROAD, PUNE. . / RESPONDENT ASSESSEE BY : SHRI HARI KRISHAN. REVENUE BY : SHRI DEEPAK GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A), PUNE 10 DATED 09.08.2 017 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A SOCIETY AND STATED TO BE TAX DEDUCTOR H AVING TAN NO.PNES22533A. IT WAS NOTICED THAT ASSESSEE HAD FILED RETURN OF TDS U/S 200(3) OF THE ACT IN FORM NO.26Q FOR THE 1 ST QUARTER OF FINANCIAL / DATE OF HEARING : 21.02.2020 / DATE OF PRONOUNCEMENT: 21.02.2020 2 ITA NO.2466/PUN/2017 YEAR 2010-11 ON 29.07.2011 AS AGAINST THE STATUTORY DATE BEING 15.07.2010 RESULTING INTO DELAY OF 379 DAYS IN FILING THE RET URN OF TDS. AO NOTED THAT ASSESSEE HAS NOT ESTABLISHED ANY REASONAB LE CAUSE FOR DELAY IN FILING E-TDS RETURN IN FORM-26 FOR 1 ST QUARTER OF F.Y. 2010-11. HE THEREFORE HELD THAT ASSESSEE TO BE LIABLE FOR PENALTY FOR DELAY IN FILING THE TDS RETURN. HE ACCORDINGLY, VIDE ORDER DT.09.08.2017 PASSED U/S 272A(2)(K) / 274 R.W.S. 200(3) OF THE ACT, CALCULATED PENALTY @ RS.100/- PER DAY FOR THE DELAY OF 379 DAYS AND LEVIED PENALTY OF RS.37,900/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE EX-PARTE OR DER DT.09.08.2017 (IN APPEAL PN/CIT(A)10/ADDL.CIT(TDS)/ 254/14-1 5) UPHELD THE LEVY OF PENALTY. AGGRIEVED BY THE ORDER OF LD .CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER PASSED BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS), DISMISSING THE APPEAL OF THE ASSESSEE EX-PARTE , IS BAD IN LAW AND AB-INITIO-VOID BECAUSE THE ORDER HAS BEEN PASSED IN VIOLATION OF P RINCIPLES OF NATURE JUSTICE, WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE . 2. THE LD . COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAD NO INTENTION TO VI OLATE THE LAW. DUE AMOUNT OF TAX WAS DEDUCTED AS SOURCE . IT WAS PAID TO THE CREDIT OF THE GOVERNMENT IN TIME. ON L Y THE QUARTERLY RETURN OF TAX DEDUCTED AT SOURCE IN FORM NO . 26Q WAS NOT FILED WITHIN TIME. IN THIS REGARD WE RE LY UPON THE JUDGEMENT OF THE HON'BLE INCOME TAX APPELLATE T RIBUNAL (DELHI)('S . MC') IN THE CASE OF MEHENDRA PRAKASH SARRAF, 64 ITD 382 (DELHI). 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE ASSESSEE WAS PREVENTED BY SUFFI CIENT CAUSE FROM FILING THE QUARTERLY RETURN WITHIN THE STIPULATED P ERIOD . 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETH ER. 3 ITA NO.2466/PUN/2017 4. BEFORE US, LD.A.R. AT THE OUTSET SUBMITTED THAT LD.CIT(A ) HAS PASSED AN EX-PARTE ORDER AND NOT ON MERITS. LD.A.R. FURTHER SUBMIT TED THAT AO DID NOT CONSIDER THE SUBMISSIONS MADE BY THE AS SESSEE AND THAT BEFORE LD.CIT(A) ASSESSEE COULD NOT APPEAR DUE TO UNAVOIDABLE REASONS. LD.A.R. FURTHER SUBMITTED THAT IF GIVEN A CHANCE, ASSESSEE UNDERTAKES THAT IT WILL APPEAR BEFORE LD.CIT(A) AND WILL PRODUCE ALL THE EVIDENCE TO SUBSTANTIATE ITS CASE. HE THEREFORE SUBMITTE D THAT ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO EXPLAIN ITS STAND. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND O BJECTED THE LD.A.R.S PRAYER FOR SECOND INNINGS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPEC T TO LEVY OF PENALTY U/S 272(2)(K) / 274 R.W.S. 200(3) OF THE ACT OF DELAY IN FILING OF E-TDS RETURN FOR 1 ST QUARTER OF F.Y. 2010-11. THE PERUSAL OF ORDER OF CIT(A) REVEALS THAT LD.CIT(A) HAS PASSED AN EX-PARTE ORD ER ONLY ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HE ARING SHOULD BE AFFORDED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD AND IN VIEW OF THE UNDERTAKING GIVEN BY ASSESSEE THAT IT WILL APPEAR BEFORE THE LD.CIT(A) AS CALLED FOR, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PRESE NT ITS CASE BEFORE THE LOWER AUTHORITIES. WE THEREFORE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WIT H LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPP ORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO R ESTORE THE ISSUE TO LD.CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE GROUND S OF THE 4 ITA NO.2466/PUN/2017 APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 21 ST DAY OF FEBRUARY, 2020. SD/- SD/- ( GEORGE MATHAN ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 21 ST FEBRUARY, 2020. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-10, PUNE. CIT(TDS), PUNE. '#$ %%&',) &', / DR, ITAT, PUNE; $+,-/ GUARD FILE. / BY ORDER // TRUE COPY // ./0%1&2 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.