ADDL.C.I.T. (TDS) RG.1, MUMBAI V. AMANRAJ HOUSING & DEVELOPMENT CORPORATION, MUMBAI

ITA 2587/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78784 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 17-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Keywords: Validity of assessment
• Section: 133A; 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . , !'# $% &'() , $* +, $ # BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI N.K . BILLAIYA, AM ./I.T.A. NO. 2587/MUM/2012 ( - - - - / ASSESSMENT YEAR : 2007-08 THE ITO(TDS)1(1), K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD, MUMBAI-400 002 M/S. AMANRAJ HOUSING & DEVELOPMENT CORPN., 1 ST FLOOR, JUHU AZAD NAGAR CHS, C.D. BARFIWALA ROAD, OPP. NEW INDIA QUARTERS, ANDHERI (W), MUMBAI-400 058 ,. $* ./ /0 ./PAN/GIR NO. :AAAJA 1283H ( .1 /APPELLANT ) .. ( 23.1 / RESPONDENT ) .1 4 $ / APPELLANT BY : ` SHRI MANISH KUMAR SINGH 23.1 5 4 $ /RESPONDENT BY : NONE 5 6* / DATE OF HEARING :21.4.2014 7- 5 6* / DATE OF PRONOUNCEMENT : 30.4.2014 +$8 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-14, MUMBAI DT. 24. 01.2012 PERTAINING TO AS SESSMENT YEAR 2007- 08. 2. THE GRIEVANCES OF THE REVENUE READ AS UNDER: ITA NO.2587/M/2012 2 1. (I) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT MENTION OF SECTION272A(2)(C) OF THE I.T. ACT, 1961 IN PLACE OF CORRECT SUB SECTION 272A (2)(K) OF THE 1.T. ACT, 19 61 IS NOT A MISTAKE CURABLE U/S. 292 OF THE INCOME TAX ACT, 19 61. 2. (II) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IS NOT APPRECIATING THE LEGAL POSITION THAT SINCE THE ORDE R PASSED BY THE A.O. IS IN SUSTENANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THE I.T.ACT,1961 WITHIN T HE MEANING OF SECTION 292B OF THE 1.T. ACT, 1961 THIS ORDER IS CL EARLY SAVED BY SECTION 292B. 3. (III) THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN TAKING INTO ACCOUNT THE FACT THAT THERE IS NO LOSS OF REVENUE A ND THE DEFAULT IS ONLY TECHNICAL AND VENIAL IN NATURE AND IN NOT APPR ECIATING THAT WHERE LEGISLATURE HAS PRESCRIBED A PENALTY FOR TECH NICAL BREACH OF LAW ,IT IS OUTSIDE THE COMPETENCE OF CIT(A) WHO IS A CREATURE OF STATUTE TO READ INTO THIS LAW WHAT IS CLEARLY RULED OUT BY THE LEGISLATIVE INTENDMENT AS CLEARLY BROUGHT OUT IN EN ACTMENT OF PROVISIONS OF LAW AS CONTAINED U/S. 272A (2)(K) OF THE I.T. ACT, 1961. 4. (IV) THE LD. CIT(A) HAS ERRED IN HOLDING THAT SI NCE THE TAX WAS DEDUCTED ONLY IN THE LAST QUARTER OF THE YEAR UNDER CONSIDERATION, THE TDS RETURN WAS ALSO FILED FOR THE LAST QUARTER AND HENCE THERE WAS NO LOSS TO REVENUE AND DEFAULT IS ONLY OF TECHN ICAL NATURE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FILED THE TDS RETURN TILL THE DATE OF PASSING THE ORDER U/S. 272A(2)(K) AS CAN BE SEEN FROM THE ORDER OF THE ADD!. CIT RG. 1, MUMB AI. 3. IN THIS CASE A SURVEY U/S. 133A OF THE ACT WAS C ONDUCTED AT THE OFFICE PREMISES OF THE ASSESSEE. FROM THE DETAILS COLLECTED DURING THE COURSE OF SURVEY IT WAS FOUND THAT THE TDS RETURNS FOR THE FINANCIAL YEAR 2005-06 WERE NOT FILED BY THE ASSESSEE WITHIN THE D UE DATE. THE AO WAS OF THE FIRM BELIEF THAT THE ASSESSEE IS LIABLE FOR PENALTY U/S. 272A(2)(C) OF THE ACT AS THE ASSESSEE HAS FAILED TO FILE TDS RET URNS IN TIME. PENALTY PROCEEDINGS WERE ACCORDINGLY INITIATED BY ISSUING S HOW CAUSE NOTICE DT. 24.12.2009. ITA NO.2587/M/2012 3 3.1. THE ASSESSEE DID NOT RESPOND TO THE NOTICES OF HEARING . THE ITO (TDS) PROCEEDED WITH THE SUBMISSIONS FILED DURING T HE COURSE OF PROCEEDINGS U/S. 201(1)/201(1A) OF THE I.T. ACT FRO M WHICH THE AO NOTICED THAT THE ASSESSEE DID NOT FILE QUARTERLY TD S RETURNS IN TIME AND WENT ON TO IMPOSE PENALTY U/S. 272A(2)(C) OF THE AC T AT RS. 4,74,000/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) OBSERVED THAT THE AO HAS WRONGLY LEVIED PENALTY U/S. 272A(2)(C) O F THE ACT. THE LD. CIT(A) FURTHER OBSERVED THAT FAILURE OF FURNISHING QUARTERLY STATEMENT WITHIN THE PRESCRIBED DUE DATES ATTRACTS PENALTY U/ S. 272A(2)(K) AND NOT U/S. 272A(2)(C) WITH EFFECT FROM 1.4.2005. THE LD. CIT(A) WAS OF THE FIRM BELIEF THAT PENALTY LEVIED U/S. 272A(2)(C) R.W . SEC. 206 IS APPLICABLE ONLY UPTO A.Y. 2005-06. THE LD. CIT(A) FURTHER OBS ERVED THAT THE AO CANNOT TAKE TO RECOURSE TO 292B OF THE ACT. ACCORD ING TO THE LD. CIT(A), PROVISIONS OF SEC. 292B HAVE BEEN MADE TO PROVIDE A GAINST PURELY TECHNICAL OBJECTIONS WITHOUT SUBSTANCE COMING IN TH E WAY OF THE VALIDITY OF ASSESSMENT PROCEEDINGS ETC , WHEREAS IN THE INST ANT CASE, THE AO HAS INVOKED WRONG SECTION WHICH CANNOT BE TREATED AS A MERE TECHNICAL MISTAKE. THE LD. CIT(A) ACCORDINGLY ANNULLED THE P ENALTY ORDER ON LEGAL GROUNDS. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. T HE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE FINDINGS OF THE AO. 6. AS NO ONE REPRESENTED ON BEHALF OF THE ASSESSEE, WE PROCEED TO DECIDE THE APPEAL EX-PARTE ON MERITS. ITA NO.2587/M/2012 4 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES. IT IS AN UNDISPUTED FACT THAT THE AO ISSUED NOTICE FOR LE VY OF PENALTY U/S. 272A(2)(C) OF THE ACT. MEANING THEREBY THAT, THE A O WAS CLEAR IN HIS MIND WHEN HE WAS INITIATING PENALTY PROCEEDINGS. S UBSEQUENTLY, THE AO IMPOSED PENALTY U/S. 272A(2)(C) OF THE ACT. THEREFO RE, IT CANNOT BE SAID THAT THIS IS A CASE OF OVERSIGHT OR WRONG MENTIONIN G OF THE SECTION. FURTHER, WHEN THE ASSESSEE CARRIED THE MATTER BEFOR E THE LD. CIT(A), THE AO DID NOT CARED TO APPEAR BEFORE THE LD. CIT(A) TO BRING TO HIS NOTICE THAT HE HAS MENTIONED THE SECTION WRONGLY. THUS TH E CONDUCT OF THE AO CLEARLY SUGGEST THAT HE INTENDED TO PROCEED U/S. 27 2A(2)(C) OF THE ACT AND COMPLETED HIS PROCEEDINGS UNDER THAT VERY SECTION I TSELF. THE LD. CIT(A) HAS VERY CORRECTLY MENTIONED THAT NO PENALTY CAN BE LEVIED UNDER THIS SECTION 272A(2)(C) OF THE ACT FROM A.Y. 2006-07 ONW ARDS. WE ALSO AGREE WITH THE FINDINGS OF THE LD. CIT(A) THAT RECO URSE SEC. 292B OF THE ACT WOULD ALSO NOT HELP THE CASE OF THE REVENUE BEC AUSE THE MISTAKE CANNOT BE SAID TO BE A PURE TECHNICAL OBJECTION. CONSIDERING THE FACTS IN TOTALITY, IN THE LIGHT OF THE RELEVANT PROVISION S OF THE ACT, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF T HE LD. CIT(A). 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2014 +$8 5 - *$ 9 :+ ; 30.4.2014 5 < SD/- SD/- (D. MANMOHAN ) (N. K. BILLAIYA ) !'# / VICE PRESIDENT $* +, / ACCOUNTANT MEMBER MUMBAI; :+ DATED 30.4.2014 . . ./ RJ , SR. PS ITA NO.2587/M/2012 5 +$8 +$8 +$8 +$8 5 55 5 26& 26& 26& 26& =$&-6 =$&-6 =$&-6 =$&-6 / COPY OF THE ORDER FORWARDED TO : 1. .1 / THE APPELLANT 2. 23.1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. &?< 26 , , / DR, ITAT, MUMBAI 6. < @ / GUARD FILE. +$8 +$8 +$8 +$8 / BY ORDER, 3&6 26 //TRUE COPY// ! !! ! / / / / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI