ITO, New Delhi V. M/s Oberoi Sales Registered Firm, Delhi

ITA 2903/DEL/2013

• Counselvise Citation: 290320114 RSA 2013
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA

Judgement Text

ITO V OBEROI SALES ITA NO 2903/DEL/2013 F Y 2007 - 08 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI H.S.SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER IN ITA NO. 2903 /DEL/ 2013 ( FINANCIAL YEAR: 2007 - 08 ) ITO, WARD - 51(5), NEW DELHI VS. OBEROI SALES REGISTERED FIRM, 1/B, SAHDEV MALHOTRA MARG, K. GATE, DELHI TAN:DEL000508E (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. P.DAM KANUNJNA, SR. DR RESP ONDENT BY : SH.SANJAY MALIK, ADV DATE OF HEARING 16.11.2015 DATE OF PRONOUNCEMENT 02 . 1 2 .2015 O R D E R PER PRASHANT MAHARISHI , A . M . 1 . THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD CIT ( A) - XXX , NEW DELHI DATED 26.02.2013 FOR THE ASSESSMENT YEAR 2007 - 08 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE ORDER OF LD.CIT ( A) IS PERVERSE AND ERRONEOUS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. AS PER SUB SECTION( 1 ) OF SECTION 246(A) OF THE I.T.ACT, AN ASSESSEE OR ANY DEDUCTOR AGGRIEVED BY ANY OF THE ORDERS MENTIONED IN THE IMPUGNED SECTION CAN FILE AN APPEAL BEFORE CIT(A). 2. THE LD CIT(A) HAS FAILED TO APPRECIATE THAT DURING THE PENALTY PROCEEDINGS SH. CHANDER PRAKASH OBERAI WHO HAD FILED APPEAL BEFORE THE LD CIT(A) IN THE PRESENT CASE CLAIMED BEFORE THE JCIT RANGE - 51 VI DE LETTER DATED 28.05.2010 (THE OFFICER WHO HAS IMPOSED THE PENALTY) THAT HE DIDN'T HAVE ANY RELATIONSHIP WITH M/S OBERAI SALES REGISTERED FIRM HAVING TAN NO. DELO - 00508E TO WHICH NOTICE PERTAINS. 3. THE LD CIT(A) HAS FURTHER ERRED IN NOT APPRECIATING THAT THE JCIT HAS LEVIED PENALTY ON M/S OBERAI SALES REGISTERED FIRM WITH TAN: DELO - 00508E. THEREFORE, SH.CHANDER PRAKASH OBERAI SHOULD NOT HAVE BEEN AGGRIEVED WITH THE PENALTY IMPOSED ON THE ASSESSE FIRM. AS SUCH, THE APPEAL FILED BY SH. C HANDER PRAKASH OBERAI WAS NOT MAINTAINABLE. 4. THE LD CIT(A) HAS FURTHER ERRED IN DECIDING THE APPEAL U/S 250 OF THE I.T. ACT WHICH WAS NOT AT ALL ADMISSIBLE AS PER PROVISIONS OF SECTION PAGE 2 OF 5 246A OF THE I.T. ACT. THEREFORE, THE ORDER OF LD CIT(A) MAY KINDLY BE SET A ASIDE. 3 . THE FACTS IN BRIEF OF THE CASE ARE THAT THE ASSESSEE FIRM WAS CONSTITUTED UNDER THE NAME AND STYLE OF OBEROI SALES UNDER AN INSTRUMENT OF PARTNERSHIP, MADE PROPER COMPLIANCE OF THE STATUTORY PROVISION BY FILING THE QUARTERLY E - TDS FOR THE FY 2007 - 08. THERE WAS THUS NO DEFAULT ON PART OF THE SAID FIRM IN MAKING COMPLIANCE OF THE STATUTORY PROVISION. DURING A SYSTEM CH ECK IT HAD REVEALED THAT THE ASSESSEE HAD NOT FILED THE QUARTERLY E - TDS RETURN IN FORM NO.24Q AS WELL AS IN FORM 26Q FOR THE FINANCIAL YEAR 2007 - 08. A SHOW CAUSE NOTICE FOR IMPOSITION OF PENALTY U/S 272A(2)(K) READ WITH SECTION 274(1) OF THE INCOME TAX ACT WAS ISSUED TO THE ASSESSEE ON 04.11.2009 . ACCORDING TO AO THE QUARTERLY RETURN WAS REQUIRED TO BE FILED U/S 206 OF THE ACT WHICH CLEARLY STATES THAT THE PRESCRIBED PERSONS IN THE CASE OF EVERY COMPANY SHALL WITHIN THE PRESCRIBED TIME PREPARED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME TAX AUTHORITY OR SUCH OTHER AUTHORITY OR AGENCY AS MAY BE PRESCRIBED, SUCH RETURNS IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED. THE ASSESSEE COMPANY HAS GIVEN A REPLY ON 25.11.2010 STATED THAT THE NOTICE RELATES TO TAN DELO00508E AND IT IS NOT RELATED TO THEM AND THE TAN WHICH IS BEING USED BY THE FIRM IS DEL O 02291C WHICH HAS BEEN ALLOTTED BY NSDL. THE ASSESSEE IN ITS LETTER HAS FURTHER STATED THAT THE N AME OF MY FI R M IS M/S OBERAI SALES AND NOT M/S OBEROI SALES REGISTER FIRM AS QUOTED IN THE NOTICE. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT TO THIS EFFECT. A SYSTEM CHECK HAS REVEALED THAT THE TAN DELO00508E HAS BEEN ALLOTTED IN THE NAME OF M/S OBERAI SALES REISTERED FIRM SHOWING ADDRESS 1/8, SAHDEV MALHOTRA MARG, KASHMERI GATE, DELHI AND THE ASSESSEE IS ALSO HAVING THE SAME ADDRESS ON PAGE 3 OF 5 WHICH THE FIRST NOTICE WAS DULY SERVED. IN THE INTEREST OF JUSTICE THE ASSESSEE WAS GIVEN FINAL OPPORTUNITY TO FURTHER EXPLAIN ITS STATUS IN THE MATTER VIDE NOTICE DATED 15.05.2010 WHICH HAS BEEN RECEIVED BACK IN THIS OFFICE ON 24.05.2010 WITH THE POSTAL REMARK THAT THE OWNER OF THE FIRM SAID THAT FIRM NAME IS WRONGLY MENTIONED AND REFUSED TO RECEIVE THE ENVELOP . THE ASSES SING OFFICER LEVIED PENALTY U/S 272A(2)(K) OF RS.7,16,000/ - FOR 7160 DAYS OF DEFAULT AS CALCULATED ABOVE WHICH IS LEVIABLE UP O N THE ASSESSEE . 4 . AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS), WHO AFTER CONSIDERING THE WRITTEN SUBMISSION OF THE ASSESSEE OBSERVED THAT BOTH THE FIRMS ARE DIFFERENT ENTITY AND NOT CONNECTED WITH EACH OTHER IN ANY WAY. THE REFORE, THE PENALTY IMPOSED BY THE ASSESSING OFFICER AMOUNTING TO RS.7,16,000/ - ON ASSESSEE DELETED. CIT (A) HELD THAT IT IS CLEAR CASE OF ALLOTMENT OF DUPLICATE TAN AND ASSESSEE FIRM IS HAVING TWO TAN . FOR ONE TAN ASSESSEE HAS FILED THE REQUISITE TDS R ETURNS. WHEREAS NATURALLY FOR OTHER TAN THERE IS NO FILING OF RETURN AND THEREFORE FOR NON FILING OF 26Q AND 24Q FOR THREE QUARTERS PENALTY OF RS 3,58,000/ - EACH WAS LEVIED. AS THE ASSESSEE IS SAME BUT HOLD TWO TAN AND IN ONE TAN ASSESSEE HAS FILED FORM NO 26Q FOR TDS ON PAYMENT OF INTEREST. CIT (A) DELETED THE PENALTY. AGGRIEVED THE REVENUE IS BEFORE US. 5 . LD DR RELIED ON THE ORDER OF ADJUDICATING OFFICER WHERE AS THE LD DR RELIED ON THE ORDER OF CIT AND SUBMITTED THE PAPER BOOK SHOWING THE RELEV ANT DOCUMENTS OF TAN AND ITS COMPLIANCE BY FILING FORM NO 26Q. HE SUBMITTED THAT ORDER OF CIT (A) MAY BE CONFIRMED. 6 . HEARD THE RIVAL CONTENTIONS, WE FIND THAT THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS HELD THAT THE LD ASSESSING OFFICER HAD SOUG HT PAGE 4 OF 5 INFORMATION PERTAIN TO TAN NO.DELO00508E OF THE FIRM M/S. OBERAI SALES REGISTERED FIRM, WHEREAS THE TAN NO. ALLOTTED TO THE ASSESSEE IS DELO02291C. T HEREFORE PENALTY U/S 272A(2)(K) OF THE ACT OF RS.7,16,000/ - HAS BEEN DELETED. THE ASSESSEE HAD PAID INTE REST TO TWO PERSONS AND HAS DEDUCTED TAX THEREON AND ALSO SUBMITTED TDS RETURNS FOR FY 2007 - 08 RELATED TO ASSESSMENT YEAR 2008 - 09. THE TAN NO. OF THE ASSESSEE TO WHOM NOTICE WERE ISSUED WAS NOT THIS ASSESSEE BUT ALTOGETHER OF DIFFERENT PARTY. THE ASSESSEE SUBMITTED THAT M/S OBERAI SALES REGISTERED FIRM WAS A DISTINCT ENTITY AND NOT ANYWAY CONNECTED WITH THE FIRM M/S OBERAI SALES. THE ASSESSEE IN THE PAPER - BOOK HAS SUBMITTED THAT TAN NUMBER ALLOTTED TO THIS FIRM M/S. OBERAI SALES DELO00091C AND ALSO SUBMITTE D THE PROVISIONAL RECEIPTS ISSUED FOR FILING FORM NO.26Q ON 23TH JUNE 2008. THE SHOW CAUSE NOTICE WAS ISSUED IN THE CASE OF M/S. OBERAI SALES REGISTERED FIRM SHOWING TAN NO.DELO00805E. VIDE LETTER DATED 12 TH AUGUST 2009 THE ASSESSEE SUBMITTED THAT INFORMAT ION SOUGHT FOR PERTAINING TO TAN DELO00508E IS NOT THEIR TAN NO. BUT THE ASSESSEES TAN NO. IS DELO 02291C, THEREFORE AS THEY ALREADY FILED THE TDS RETURN PROCEEDING MAY BE DROPPED. HOWEVER, THE AO LEVIED PENALTY FOR NOT FILING FORM NO.26Q IN FORM NO.24Q F OR FIRST THREE QUARTERS RELATED TO FY 2007 - 08. THE ASSESSING OFFICER HIMSELF HAS STATED IN PENALTY ORDER THAT A PERUSAL OF THE TDS APPLICATION OF THE FIRM M/S. OBERAI SALES ALLOTTED TWO TAN NOS., ONE IN THE NAME OF M/S. OBERAI SALES HAVING TAN NO.DELO02291 C AND ANOTHER IN THE NAME OF M/S OBERAI SALES REGISTERED FIRM HAVING TAN NO.DELO00508E. AT THE MOST IT CAN BE SAID THAT ONE PERSON HAS BEEN ALLOTTED TWO TAN NOS. BUT AGAINST ONE OF THE TAN NUMBER S THE ASSESSEE HAS ALREADY DISCHARGED ITS RESPONSIBILITIES OF FILING TDS PAGE 5 OF 5 RETURN IN FIRM N0.26Q FOR THE FY 2007 - 08. THE FIRM DOES NOT HAVE ANY LIABILITY FOR DEDUCTING TAX AT SOURCE U/S 192 OF THE ACT AND THEREFORE THERE CANNOT BE ANY LIABILITY IN FLINGING FORM NO.24Q. IN VIEW OF THE ABOVE FACT WE ARE CONVINCED THAT THE ASSESSEE HAS ALREADY FILING FORM NO.26Q FOR DEDUCTION OF TAX ON INTEREST AND THERE IS NO LIABILITY FOR FILING OF FORM 24Q AS THERE IS NO PAYMENT OF SA LARY ON WHICH TAX IS DEDUCTIBLE. THEREFORE WE CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DELETING THE TOTAL PENALTY OF RS.7,16,000/ - BEING PENALTY LEVIABLE FOR NON FILING OF FORM 26Q OF RS.3,58,000/ - AND PENALTY LEVIABLE OF RS.3,58,000/ - FOR NON FILING FOR 24Q AS THIS DOES NOT RELATE TO TAN OF THE ASSES SEE . 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 2 . 12 . 2015 . - S D / - - S D / - (H.S.SIDHU) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 2 / 12 / 2015 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI