Jwala Logistic Pvt. Ltd., Baroda V. The Income Tax Officer, TDS Ward-1, Baroda

ITA 2806/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8611 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASOON KABARA
• Assessee Lawyers: ANIL R SHAH; KAJAL R SHAH

Judgement Text

, *LH *LH*LH *LH* ** * IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER I.T.A. NO. 2806/AHD/2014 ( / ASSESSMENT YEAR :2012-13) JWALA LOGISTIC PVT. LTD. 14, GOKUL ESTATE, HARNI GOLDEN CHOWKDI ROAD, B/H. MAA PARTY PLOT, HARNI, BARODA - 390014 VS. INCOME TAX OFFICER, TDS WARD 1, BARODA - 390007 ! PAN/GIR NO. : AACCJ 2500 R ( ' / APPELLANT ) .. ( #' RESPONDENT ) '$ APPELLANT BY : SHRI ANIL R. SHAH, C.A. & MS. KAJAL R. SHAH, C.A. #'%$ / RESPONDENT BY : SHRI PRASOON KABARA, SR. D.R. & ' (%) * / DATE OF HEARING 24/07/2017 +,-. %) * / DATE OF PRONOUNCEMENT 11/09/2017 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-VI, BARODA, DAT ED 01/07/2014, FOR CONFIRMING THE PENALTY U/S.272A(2)(K) OF THE I. T. ACT LEVIED BY THE AO, FOR THE ASSESSMENT YEAR (AY) 2012-13, ON THE FO LLOWING GROUNDS: IN THE CIRCUMSTANCES AND ON THE FACTS OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING PENALTY U/S.272A(2)(K) OF THE I.T. AC T AMOUNTING TO RS.1,08,456/- . ITA NO. 2806/AH D/2014 JWALA LOGISTIC PVT. LTD. VS ITO. ASST.YEAR 2012-13 - 2 - 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, ON VERIFICATION OF RECORDS SUBMITTE D BY THE ASSESSEE, IT IS NOTICED THAT THE ASSESSEE HAD NOT FILED THE QUAR TERLY E-TDS STATEMENT FOR THE 1 ST , 2 ND , 3 RD AND 4 TH QUARTER DURING THE F.Y. 2011-12 RELEVANT TO A.Y. 2012-13 WITHIN THE SPECIFIED TIME LIMIT AS PER SECTION 200(3) OF THE I.T. ACT, 1961. THE DUE DATE FOR FILING THE QUARTER LY E-TDS STATEMENT FOR THE 1 ST , 2 ND , 3 RD AND 4 TH QUARTER DURING THE F.Y. 2011-12 WAS 15/07/2011, 15/10/2011, 15/01/2012 AND 15/05/2012. HOWEVER, THE ASSESSEE HAS FILED THE QUARTERLY STATEMENT FOR THE 1 ST , 2 ND , 3 RD AND 4 TH QUARTER ON 29/11/2012. THEREFORE, A SHOW-CAUSE NOTICE FOR IMPOSING PENALTY U/S. 272A(2)(K) WAS ISSUED AND SERVED UPON THE ASSESSEE. 2.2 IN RESPONSE TO THE NOTICE, THE ASSESSEE HAS SUB MITTED ITS REPLY VIDE LETTER 22.02.2013 WHICH STATES THAT: THE ASSESSEE COMPANY IS A VERY SMALL COMPANY NOT H AVING EMPLOYED ANY PROFESSIONALLY QUALIFIED PERSON TO LOOK AFTER A LL THESE REQUIREMENTS/COMPLIANCES. THE DIRECTORS ALSO NOT BE ING VERY MUCH QUALIFIED, WERE NOT AWARE OF THE EXACT PROVISIONS F OR THE DUE DATES FOR FILING OF TDS RETURNS. FURTHER, YOU MAY KINDLY NOTE THAT THE AMOUNT OF TDS HAVE GENERALLY BEEN PAID IN TIME BY THE COMPANY . THE DELAY HAS TAKEN PLACE ONLY IN FILING OF THE TDS RETURNS AND T HERE IS NO LOSS TO THE REVENUE ON ACCOUNT OF DELAY IN FILING OF THE TDS RE TURNS. YOU MAY THEREFORE, KINDLY APPRECIATE THAT THE DELAY IS MERELY OF CLERICAL IN NATURE AND THERE IS NO WILLFUL ATTEMPT TO EVADE ANY TAX. TAX HAS PROPERLY BEEN DEDUCTED AT SOURCE AND HAVE ALSO BEEN PAID IN TIME. UNDER SUCH CIRCUMSTANCES, YOUR HONOUR ARE HEREBY REQUESTED TO KINDLY DROP THE PENALTY PROCEEDINGS INITIATED U/S.272A(2)( K) AND OBLIGE. ITA NO. 2806/AH D/2014 JWALA LOGISTIC PVT. LTD. VS ITO. ASST.YEAR 2012-13 - 3 - 2.3 THUS, THE ASSESSEES REPLY WAS CONSIDERED CAREF ULLY AND THE SAME DOES NOT HAVE ANY MERIT. THE ASSESSEES ARGUMENTS A RE NOT CONVINCING AS THE ASSESSEE IS BOUND BY SECTION 200(3) OF THE ACT, 1961 TO FILE THE QUARTERLY STATEMENTS IN TIME. AS PER THE PROVISIONS OF SECTION 272A(2)(K), IF ANY PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVERED A COPY OF THE STAT EMENT WITHIN THE TIME SPECIFIED IN SECTION 200(3) OR THE PROVISO TO SECTI ON 206C(3), IS LIABLE TO PAY BY WAY OF PENALTY A SUM (OF ONE HUNDRED RUPEES) FOR EV ERYDAY DURING WHICH THE FAILURE CONTINUES. 2.4 F.Y. QUARTER DUE DATE DATE OF FILING NO. OF DAYS (DELAY) TDS DEDUCTED PENALTY LEVIABLE 2011 - 12 Q1 15/07/2011 29/11/2012 503 26,786 50,300 2011-12 Q2 15/10/2011 29/11/2012 411 29,970 41,100 2011-12 Q3 15/01/2012 29/11/2012 319 32,009 31,900 2011-12 Q4 15/05/2012 29/11/2012 198 2,04,680 19,800 TOTAL 1431 2,93,445 1,43,100 THE TOTAL DEFAULT COMES TO RS.1,43,100/- (1431 DAYS RS.100 PER DAY). IN VIEW OF SECTION 272A(2)(K), THE MAXIMUM PE NALTY SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTED/DEDUCTIBLE. IN TH IS CASE, THE ASSESSEE HAS DEDUCTED TAX OF RS.2,93,445/- FOR THE F.Y. 2011 -12 AS PER THE ABOVE TABLE. THEREFORE, THE PENALTY IS LEVIED AT RS.1,43, 100/-. 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LEARNED CIT(A). LEARNED CIT(A) PARTLY AL LOWED THE APPEAL OF THE ASSESSEE. ITA NO. 2806/AH D/2014 JWALA LOGISTIC PVT. LTD. VS ITO. ASST.YEAR 2012-13 - 4 - 4. WE HAVE GONE THROUGH THE IMPUGNED ORDER AND HEAR D BOTH THE PARTIES. WE HAVE TAKEN NOTE OF THE ASSESSEES SUBMI SSION. THE ASSESSEE HAS PAID TAX AND THERE IS NO LOSS TO THE REVENUE. I T IS EXPLAINED BY THE ASSESSEE THAT THE LAPSE WAS UNINTENTIONAL AND BONAF IDE AS HE DID NOT EMPLOY ANY PROFESSIONALLY QUALIFIED PERSON TO LOOK AFTER ALL THESE REQUIREMENTS/COMPLIANCES. THE DIRECTORS ARE ALSO NO T BEING VERY MUCH QUALIFIED AND WERE NOT AWARE OF THE INTRICACIES FOR THE DUE DATES FOR FILING OF TDS RETURNS. IT IS ALSO STATED THAT THE DELAY WAS M ERELY OF CLERICAL IN NATURE AND THERE WAS NO WILLFUL ATTEMPT TO EVADE AN Y TAX. ASSESSEE IS NOT WELL QUALIFIED AND BEING A SMALL COMPANY HAVING A S HORTAGE OF STAFF. WE ARE SATISFIED THAT THE EXPLANATION IS REASONABLE AN D DESERVES TO BE ACCEPTED. 5. WE THEREFORE, DELETE THE PENALTY CONFIRMED BY TH E LEARNED CIT(A) U/S.272A(2)(K) OF THE I.T. ACT. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 11 / 09 /201 7 SD/- SD/- IZEKSN DQEKJ EGKOH J IZLKN IZEKSN DQEKJ EGKOH J IZLKN IZEKSN DQEKJ EGKOH J IZLKN IZEKSN DQEKJ EGKOH J IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRAMOD KUMAR) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/09/2017 ITA NO. 2806/AH D/2014 JWALA LOGISTIC PVT. LTD. VS ITO. ASST.YEAR 2012-13 - 5 - PRITI YADAV, SR.PS !'# $#! COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 012) & 3) / CONCERNED CIT 4. & 3) 45 / THE CIT(A)-VI, BARODA. 5. 67 8)'12 *12. 0 / DR, ITAT, AHMEDABAD 6. 8 9: ( GUARD FILE. % & / BY ORDER, # 6)) //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION .. 29/08/2017 (DICTATION-PAD 3 PAGES ATTACHED AT THE END OF THIS APPEAL- FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04/09/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 06/09/2017 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER