State Bank of Hyderabad, Latur V. Joint Commissioner of Income Tax,

ITA 2587/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5193 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 15-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAVE
• Keywords: Reasonable cause
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2 587 /P U N/201 6 / ASSESSMENT YEAR : 20 1 1 - 1 2 STATE BANK OF HYDERABAD, BRANCH : CHAKUR, 1 MAIN ROAD, CHAKUR, DIST. LATUR - 413513 . / APPELLANT T AN: NSKSO6691G VS. THE JT. COMMISSIONER OF INCOME TAX, TDS RANGE , NASHIK . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : S HRI HITENDRA NINAVE / DATE OF HEARING : 1 2 . 12 .201 8 / DATE OF PRONOUNCEMENT: 05 . 0 2 .2 01 9 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 1 , AURANGABAD , DATED 31 . 0 8 .201 6 RELATING TO ASSESSMENT YEAR 20 1 1 - 1 2 AGAINST LEVY OF PENALTY UNDER SECTION 27 2A(2)(K) R.W.S. 200(3) OF THE INCOME - TAX ACT , 19 61 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - ITA NO. 2 587 /P U N/20 1 6 STATE BANK OF HYDERABAD 2 1) THE LEARNED CIT(APPEAL - 1), AURANGABAD FAILED TO TAKE INTO CONSIDERATION THAT THE APPELLANT WAS NOT EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDU CT CONTUMACIOUS OR DISHONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. 2) THE LEARNED CIT(APPEAL - 1), AURANGABAD HAS ALSO ERRED IN LAW AND IN FACT IN DISMISSING THE APPEAL IN SPITE OF THE FACTS THAT BY THE APPELLANT THERE IS NO LOSS TO THE GOVERNM ENT TREASURY SINCE THE TDS HAS BEEN PAID WITHIN DUE DATES WITHOUT DELAY. 3) IN SUPPORT OF MY CONTENTIONS I PLACE RELIANCE ON THE FOLLOWING DECISIONS: - 1 . HINDUSTAN STEEL LTD. VS. STATE OF ORISSA 83 ITR 27 (SC) 2 . THE ORIENTAL INSURANCE COMPANY VS. DEPT OF INC OME TAX (ITA NO.2906/AHD/2009) 3 . CIT VS. ACCOUNTS OFFICER TELECOM 281 ITR 302 (ALLAHABAD) 4 . HARSIDDH CONSTRUCTION (P) LTD. VS. CIT 244 ITR 417 (GUJRAT) 5 . DR. PRANNOY ROY VS. CIT 254 ITR 755 (DEL) 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSES SEE NOR ANY APPLICATION WAS FILED FOR ADJOURNMENT. HOWEVER, IN VIEW OF THE ISSUE INVOLVED, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AG AINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT AT 42 ,500/ - . 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED QUARTERLY TDS RETURN IN FORM NO.2 4 Q AFTER THE TIME LIMIT PRESCRIBED UNDER SECTION 200(3) OF THE ACT FOR QUARTER NO.4 OF FINANCIAL YEAR. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY OF 42 ,500/ - . THE PLEA OF ASSESSEE BEFORE THE CIT(A) THAT IT HAD DEDUCTED TAXES AND PAID THE SAME BUT COULD NOT FILE THE TDS RETURNS BECAUSE OF UNAWARENESS OF LAW AND HENCE, THERE WAS NO MALAFIDE INTENTION IN NOT FILING THE SAID RETURNS WITHIN TIME, WAS NOT ACCEPTED BY THE CIT(A) AND PENALTY LEVIED WAS UPHELD. ITA NO. 2 587 /P U N/20 1 6 STATE BANK OF HYDERABAD 3 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE STANDS SQUARELY COVERED AGAINST THE ASSESSEE BY THE ORDER OF PUNE BENCH OF TRIBUNAL IN SERIES OF CASES WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) IN ITA NO.832/PN/2016, RELATING TO ASSESSMENT YEAR 2011 - 12, ORDER DATED 07.10.2016. 8. ON PERUSAL OF RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, WE FIND THAT THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE A CT. 9. WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE PUNE BENCH OF TRIBUNAL IN BUNCH OF APPEALS WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) (SUPRA), WHEREIN THE TRIBUNAL HELD THAT IF THERE IS REASONABLE CAUSE FOR THE DEFAULT, THEN PENALTY IS NOT TO BE LEVIED. WHERE THE ASSESSEE HAD DEFAULTED IN NOT DEPOSITING THE TAX DEDUCTED AT SOURCE IN TIME, THEN IN SUCH CASES, THE RETURNS WERE DELAYED AND PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE; HOWEVER, THE SAME IS TO BE RESTRI CTED FROM THE DATE OF PAYMENT OF TDS TO THE DATE OF FILING E - TDS STATEMENTS SINCE E - TDS STATEMENTS CANNOT BE FILED WITHOUT PAYMENT OF TDS TO THE CREDIT OF CENTRAL GOVERNMENT. SIMILAR RATIO HAS BEEN LAID DOWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN M/S. ASHIRWAD COMPLEX VS. JCIT (TDS) IN ITA NO.895/CHD/2013, RELATING TO ASSESSMENT YEAR 2010 - 11, ORDER DATED 22.11.2013. THE ASSESSING OFFICER IS THUS, DIRECTED TO RESTRICT LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF T HE ACT IN LINE WITH OUR DIRECTIONS IN EARLIER ORDER. THE ASSESSEE IS DIRECTED TO FURNISH COMPLETE DETAILS ITA NO. 2 587 /P U N/20 1 6 STATE BANK OF HYDERABAD 4 BEFORE THE ASSESSING OFFICER IN THIS REGARD. THUS, THE GROUND OF APPEAL RAISED BY ASSESSEE IS PARTLY ALLOWED. 10 . IN THE RESULT, THE APPEAL OF ASSE SSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 5 TH D AY OF FEBRUARY , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL ME MBER / PUNE ; DATED : 5 TH FEBRUARY , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 1 , AURANGABAD ; 4. THE CIT - TDS , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE