Jagdamba Realtors P Ltd, Nagpur V. Addl.CIT,TDS Range-1, Nagpur

ITA 281/NAG/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84678 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 09-07-2012
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . /ITA NO.281/NAG/2012 ( AY: 2006 - 2007 ) . /ITA NO.282/NAG/2012 ( AY: 2007 - 2008 ) . /ITA NO.283/NAG/2012 ( AY: 2008 - 2009 ) . /ITA NO.284/NAG/2012 ( AY: 2009 - 2010 ) JAGDAMBA REALTORS P LTD, 602, NIKALAS TOWERS, RAMDASPETH, NAGPUR - 440010. / VS. ADDL. CIT, TDS, RANGE - 1, AAYAKAR BHAVAN, NAGPUR - 440001. ./ PAN: AAACJ4369A ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI P.R. MANE / DATE OF HEARING : 09 .09.2014 / DATE OF PRONOUNCEMENT : 10 .09.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE 4 APPEALS UNDER CONSIDERATION. ALL THE FOUR APPEALS ARE FILED BY THE ASSESSEE ON 9.7.2012 INVOLVING THE ASSESSMENT YEARS 2006 - 07 TO 2009 - 10. SINCE, THE ISSUE INVOLVED IN THESE FOUR APPEALS IS IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. 2. THE ONLY I SSUE INVOLVED IN THESE APPEALS RELATES TO THE LEVY OF PENALTY U/S 272A(2)(K) R.W.S 200(3 ) OF THE INCOME TAX ACT, 1961. BRIEFLY STATED RELEVANT FACTS OF THE CASES ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE. DURING THE YEARS, A SSESSEE FAILED TO FURNISH QUARTERLY RETURN IN FORM NO.24Q/26Q FOR ALL THE QUARTERS OF THE AYS UNDER CONSIDERATION WITH IN THE PRESCRIBED TIME AS REQUIRED BY THE PROVISIONS OF SECTION 200(3) OF THE ACT READ WITH RULE 31A OF THE INCOME TAX RULES AND THUS, THE REVENUE INITIATED THE PENALTY PROCEEDINGS AS PER THE PROVISIONS OF SECTION 272A(2)(K) OF THE ACT. ACCORDINGLY, AO LEVIED PENALTY FOR AYS UNDER CONSIDERATION AND THE DETAILS ARE AS UNDER: 2 AY PENALTY LEVIED(RS.) 2006 - 07 3,62,000 2007 - 08 2,65,600 2008 - 09 1,68,700 2009 - 10 2,37,400 2.1. AGGRIEVED WITH THE DECISION OF THE AO, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY FOR ALL THE ASSESSMENT YEARS. 3. DURING THE PROCEEDINGS BEFORE THE F IRST APPELLATE AUTHORITY, ASSESSEE SUBMITTED THAT THE DEFAULT IS OF TECHNICAL NATURE AND PLEADED FOR DELETION OF THE PENALTY. CIT (A) DISCUSSED THE FACTS OF ALL THE FOUR ASSESSMENT YEARS IN PARA 3 OF HIS CONSOLIDATED ORDER DATED 23.1.2012 . AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE, WHICH ARE REPRODUCED IN THE SAID PARA 3 HIS ORDER, CIT (A) CONFIRMED THE PENALTY FOR ALL THE ASSESSMENT YEARS AS PER THE DISCUSSION GIVEN IN PARA 5 OF THE IMPUGNED ORDER. THE SUBMISSIONS OF THE ASSESSEE ARE BASICALLY REV OLVE AROUND THE DELAY , WHICH IS ONLY A TECHNICAL DELAY AS THERE IS NO LOSS TO THE REVENUE AND THE ASSESSEE HAS PAID THE TDS ALONG WITH THE INTEREST AND THERE IS NO MALA FIDE IN FILING THE TDS BELATEDLY. IN THIS REGARD, ASSESSEE ALSO RELIED ON SOME DECISIO NS OF THE ITAT I.E., PUNE BENCH DECISION IN THE CASE OF EXECUTIVE ENGINEER VS. DCIT [1194] 048 TTJ 0047; MUMBAI BENCH DECISION IN THE CASE OF ROYAL METAL PRINTERS (P) LTD VS. ADDL. CIT [2010] TAX PUB (DT) 1402 AND THE JUDGMENT OF THE HONBLE PUNJAB & HARYA NA HIGH COURT IN THE CASE OF CIT (TDS) VS. EXECUTIVE ENGINEER [2010] 320 ITR 0494. ON PERUSAL OF THE SAID DECISIONS, CIT (A) FOUND THAT THE SAME ARE DISTINGUISHABLE ON FACTS. EVENTUALLY, CIT (A) CONFIRMED THE PENALTY AS PER THE DISCUSSION GIVEN IN PARAS 5.4 AND 5.5 OF THE IMPUGNED ORDER. AGGRIEVED WITH THE DECISION OF THE CIT (A), ASSESSEE FILED THE PRESENT APPEALS BEFORE THE TRIBUNAL. 4. DURING THE PROCEEDINGS BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT ITS CASES DESPITE THE SERVICE AND ISSUE OF THE NOTICES. 5. ON THE OTHER HAND, LD DR HEAVILY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. WE HAVE HEARD THE LD DR AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIE S AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. CONSIDERING THE NATURE OF THE ISSUES INVOLVED IN THE INSTANT APPEALS AND WITH THE HELP OF THE LD DR, WE ANALYSED 3 THE FACTS OF THE CASES AND THE RELEVANT PROPOSITIONS ON THE ISSUES. ON PERUSAL OF THE OR DER OF THE CIT (A) IN GENERAL AND PARAS 5.4 & 5.5 IN PARTICULAR, WE FIND THE SAME ARE RELEVANT IN THIS REGARD. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAID PARAS 5.4 AND 5.5 OF THE IMPUGNED ORDER ARE REPRODUCED HERE WHICH READ AS UNDER: 5.4. IT IS CLEAR THAT APPELLANT CHOSE TO FILE RETURN AT ITS OWN CONVENIENCE WHENEVER IT PLEASED THE APPELLANT. AN APPELLANT, WHO IS CONSCIOUS OF ITS OWN RIGHT IS COMPLETELY OBLIVIOUS TO HARDSHIP TO WHICH ITS ACTION WILL PUT TO BOTH THE DEDUCTEES AND DEPARTMENT IN GI VING DUE CREDIT TO THE DEDUCTEES AND EVERY TIME DEPARTMENT WILL HAVE TO VERIFY THE TDS PAYMENT FROM BANKS. THE PLEA OF THE APPELLANT THAT IT IS DUE TO TECHNOLOGICAL CHANGE IS ALSO FRIVOLOUR AS APPELLANT IS FILING ITS OWN RETURN AS PER LAW WITH THE DEPARTMENT AND EVEN WHEN IT WAS AWARE OF LEGAL RESPONSIBILITY IT CONTINUED TO DELAY IN FILING YEAR AFTER YEAR SHOWING COMPLETE DISREGARDS TO TIME LIMIT SET IN ACT / RULES OF DEPARTMENT. 5.5. CASE LAWS QUOTED BY THE APPELLANT DO NOT COME TO RESCUE OF APPELL ANT AS IT IS NEITHER TECHNICAL DEFAULT NOR ACT OF A SLIP ON PART OF THE APPELLANT . IT IS AN ACT WHERE APPELLANT DELIBERATELY CHOSE TO IGNORE LEGAL RESPONSIBILITY AND THE ONLY PUNISHMENT WHICH APPELLANT IS GETTING IS ONLY RS. 100/ - PER DAY OF DELAY AND APP ELLANT WANTS EVEN THIS STATUTORY COMPENSATION WHICH HE IS LIABLE TO PAY FOR PUTTING THE PROCESSING OF RETURN / ASSESSMENT PROCEEDINGS / TDS VERIFICATION / ISSUE OF REFUNDS AT JEOPARDY OF ALL DEDUCTEES IN WHOSE CASE APPELLANT HAS DEDUCTED THE TDS BUT NOT FI LED RETURN YEAR AFTER YEAR. IT IS CLEAR CASE OF CALLOUS ATTITUDE AS THE MINIMUM PENALTY LEVIED BY THE AO (AS THERE IS NO OTHER PENALTY) OF RS. 100/ - PER DAY WHICH HAS RESULT ED IN THE TOTAL PENALTY IN VARIOUS YEARS FOR NOT FILING BUT RETURN IN FORM NO.24Q & FORM NO.2 6Q IS UPHELD AS LEVIED BY THE AO. 7. THE ABOVE EXPLANATION OF THE ASSESSEE SUBMITTED BEFORE THE CIT (A) / AO IS VERY GENERAL IN NATURE. IT IS THE EXPLANATION OF THE OFFICERS THAT TO THE SPECIFIC DEFAULTS DISCUSSED ABOVE, A SPECIFIC EXPLANATION WITH EVIDENCES SHOULD BE FILED. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE CIT (A) HAS RIGHTLY ADJUDICATED THE ISSUES UNDER CONSIDERATION WHILE CONFIRMING THE PENALTY AND ALSO DISTINGUISHED THE DECISIONS RELIED ON BY THE ASSESSEE. THEREFORE, W E FIND NO INFIRMITY IN THE ORDER OF THE CIT (A) AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH SEPTEMBER, 2014. SD/ - SD/ - (VIVEK VARMA) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER NAGPUR ; 10 /09/2014 4 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , / DR, ITAT, NAGPUR. 6. / GUARD FILE . //TRUE COPY// / BY ORDER, (SR. PRIVATE SECRETARY) / ITAT, NAGPUR