RAVIRAJ RELAMPADDU, NAVI MUMBAI V. DCIT 23(1), MUMBAI

ITA 2919/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0531 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 30-05-2017
• Assessment Year: misc
• Appeal Filed On: 21-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SOMANATH S UKKALI
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 2919 / MUM/ 201 6 ( / ASSESSMENT YEAR: 2010 - 11 ) SHRI RAVIRAJ RELEMPADDU, A, 204, A - WING, 2 ND FLOOR, NIKITA HORIZON, PLOT NO. 5, SECTOR 6, GHANSOLI, NAVI MUMBAI - 400701 VS. THE DCIT 23(1), MUMBAI ./ ./ PAN/GIR NO. : AFDPR 4214 B ( / APPELLANT ) .. ( / RESPONDENT ) & ./ ITA NO. 2920 / MUM/ 201 6 ( / ASSESSMENT YEAR: 2010 - 11 ) SHRI RAVI RAJ RELEMPADDU, A, 204, A - WING, 2 ND FLOOR, NIKITA HORIZON, PLOT NO. 5, SECTOR 6, GHANSOLI, NAVI MUMBAI - 400701 VS. THE ADDL. CIT (TDS), THANE ./ ./ PAN/GIR NO. : AFDPR 4214 B ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : NONE /REVENUE BY : SHRI SOMANATH S. UKKALI (DR) / DATE OF HEARING : 30 /05 /2017 / DATE OF PRONOUNCEMENT : 30/05 /2017 / O R D E R PER RAM LAL NEGI, JM THESE APPEAL S HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST TWO ORDER S DATED 23/02/2016 , PASSED BY THE LD. CIT (A ), 1 , THANE, PERTAI NIN G TO THE 2 ITA NO S . 2919 & 2920/MUM/2016 ASSESSMENT YEAR: 2010 - 11 ASSESSMENT Y EAR 2010 - 11 , WHEREBY THE LD. CIT (A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST ORDER IMPOSING PENALTY U/S 272(2)(K) AND 271C OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT) RESPECTIVELY . SINCE, BOTH THE APPEALS PERTAIN TO THE SAME ASSESSEE F OR THE SAME ASSESSMENT YEAR, BOTH THE APPEALS WERE CLUBBED FOR HEARD TOGETHER AND ARE BEING DISPOSED OF FOR THE SAKE OF CONVENIENCE. ITA NO. 2919/MUM/2016 (ASSESSMENT YEAR: 2010 - 11 ) THIS APPEAL WAS FIXED FOR TODAY FOR HEARING. WHEN THE CASE WAS CALLED F OR HEARING, NEITHER THE APPELLANT /ASSESSEE NOR ANY REPRESENTATIVE ON BEHALF OF THE ASSESSEE APPEARED. NO APPLICATION FOR ADJOURNMENT OF THE CASE WAS RECEIVED. WE NOTICED THAT THE ASSESSEE HAS RECEIVED THE NOTICE WELL IN TIME I.E. , ON 17.04.2017. SINCE, THE ASSESSEE APPELLANT HAS NOT APPEARED DESPITE SERVICE OF NOTICE, IT CAN BE INFERRED THAT THE ASSESSEE IS NO MORE INTERESTED IN PURSUING HIS CASE S . ACCORDINGLY, WE DECIDED TO PROCEED WITH THE APPEAL ON THE BASIS OF MATERIAL PLACED ON RECORD, AFTER HEARING TH E DEPARTMENTAL REPRESENTATIVE. 2. IN THIS CASE THERE WAS DELAY IN FILING TDS STATEMENTS FOR FOUR QUARTERS. THE AO ISSUED NOTICE TO THE ASSESSEE/APPELLANT ASKING THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY U/S 272A (2)(K) OF THE ACT SHOULD NOT BE IMPOSED, H OWEVER, THE ASSESSEE DID NOT RESPOND TO THE SAID NOTICE . ACCORDINGLY, PENALTY U/S 272 (A)(2)(K) , AMOUNTING RS. 61,562/ - WAS IMPOSED BY THE AO. AGAINST THE SAID ORDER, THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD. CIT (A). DURING THE APPELLATE PROCEEDINGS THE ASSESSEE DID NOT FURNISH ANY REASONABLE CAUSE FOR DE LAY IN FIL ING THE TDS STATEMENTS FOR FOUR QUARTERS. THE LD. CIT (A) AFTER HEARING THE ASSESSEE DISMISSED THE APPEAL AND UPHELD THE FINDINGS OF THE AO. AGAINST THE SAID ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (APPEAL S) ON THE FOLLOWING EFFECTIVE GROUND : - 3 ITA NO S . 2919 & 2920/MUM/2016 ASSESSMENT YEAR: 2010 - 11 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING PENALTY U/S 271C OF RS . 1,31,533/ - . 4. SINCE, THE ASSESSEE OR REPRESENTATIVE DID NOT APPEAR IN THIS CASE DESPITE SERVICE OF NOTICE, IT WAS DECIDED TO PROCEED WITH THE CASE ON THE BASIS OF MATERIAL AVAILABLE ON THE RECORD AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE. 5. BEFO RE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW SUBMITTED THAT THERE IS NO INFIRMITY IN THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). THEREFORE, THERE IS NO MERIT IN THE APPEAL OF THE ASSESSEE. 6. WE HAVE GONE T H RO UGH THE MATERIAL PLACED ON RECORD. WE NOTICE THAT THE ASSESSEE HAS FAILED TO GIVE ANY REASONABLE CAUSE FOR DELAY IN FILING TDS STATEMENT IN QUESTION. THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE HOL D ING AS UNDER: I HAVE CARE FULLY CONSIDERED THE APPELLANTS SUBMISS IONS, THE OBSERVATIONS OF THE A O IN THE PENALTY ORDER AND THE FACTS OF THE CASE. THE APPELLANT HAD NOT FI LED ANY SUBMISSIONS BEFORE THE AO. DURING THE COURSE OF PRESENT PROCEEDINGS ALSO THE APPELLANT HAS NOT GIVEN AN Y REASONABLE CAUSE FOR DELAY IN FILING THE TDS STATEMENT FOR ALL THE FOUR QUARTERS. HE HAS ONLY STATED THAT THE APPELLANTS BUSINESS OF CIVIL CONTRACTOR WAS MANAGED BY LOW QUALIFIED STAFF. THE APPELLANT CAME TO KNOW ABOUT NON - DEDUCTION OF TAX ONLY DURING THE COURSE OF AUDIT. THIS CONTENTION OF THE APPELLANT CANNOT BE ACCEPTED BECAUSE THIS IS NOT THE FIRST YEAR OF THE APPELLANTS BUSINESS NOR WAS THIS FIRST YEAR OF APPLICATION OF TDS PROVISIONS. THEREFORE, THE APPELLANT HAS FAILED TO GIVE ANY REASONABLE CA USE FOR DELAY IN FILING THE TDS STATEMENTS. FOR THESE REASONS, THE FACT OF THE APPELLANTS CASE ARE DIFFERENT FROM THE FACTS OF VARIOUS DECISIONS RELIED UPON BY HIM. IT IS THEREFORE, HELD THAT THE AO HAS RIGHTLY IMPOSED PENALTY U/S 272A(2)(K) OF THE I.T. A CT AMOUNTING TO RS. 1,84,272/ - FOR THE FOUR QUARTERS FOR F.Y. 2009 - 10 AND THE SAME IS THEREFORE CONFIRMED. 7. IT IS APPARENT FROM THE ORDER OF THE LD. CIT(A) AND SUBMISSIONS OF THE ASSESSEE MADE BEFORE THE LD. CIT (A) THAT THE ASSESSEE HAS FAILED TO GIV E ANY REASONABLE CAUSE OF DELAY IN FI LING THE TDS STATEMENT IN QUESTION. HENCE, IN 4 ITA NO S . 2919 & 2920/MUM/2016 ASSESSMENT YEAR: 2010 - 11 OUR CONSIDERED VIEW THE LD. CIT(A) HAS RIGHTLY REJECTED THE APPEAL OF THE ASSESSEE . THERE IS NO MATERIAL ON THE RECORD, TO HOLD THAT THE IMPUGNED ORDER IS PERVERSE OR NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD. WE THEREFORE, UPHOLD THE FINDINGS OF THE LD. CIT (A) AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. ITA NO. 2920 /MUM/2016 (ASSESSMENT YEAR: 2010 - 11 ) IN THIS CASE THE ASSESSEE HAD NOT DEDUCTED TAX U/S 194 OF THE ACT ON PAYMENTS MADE TO VARIOUS PERSONS AND ACCORDINGLY THE AO IMPOSED PENALTY U/S 271C OF THE ACT AMOUNTING TO RS. 1,31,533/ - . AGAINST SAID ORDER, THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD. CIT (A). DURING THE APPELLATE PROCEEDINGS THE ASSESSEE SUBMI TTED THAT THE TAX WAS NOT DEDUCTED UNDER A BONA FIDE BELIEF THAT THE SAME WAS NOT REQUIRED TO BE DEDUCTED ON PAYMENT TO THE PARTIES. DURING THE COURSE OF AUDIT, WHEN THE T AX AUDITOR POINTED OUT ABOUT THE SAID LAPSE, THE TAX WAS IMMEDIATELY PAID WITH INTERE ST. THE LD. CIT (A) AFTER HEARING THE ASSESSEE DISMISSED THE APPEAL AND UPHELD THE FINDINGS OF THE AO. 2. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND: 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 39,400/ - ON LATE FILING OF TDS RETURN FOR Q4 FOR F.Y. 2009 - 2010. 3. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW SUBMITTED T HAT THERE IS NO INFIRMITY IN THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). THEREFORE, THERE IS NO MERIT IN THE APPEAL OF THE ASSESSEE. 4. WE HAVE GONE THROUGH THE MATERIAL PLACED BEFORE US THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE HOLDING AS UNDER: - 5 ITA NO S . 2919 & 2920/MUM/2016 ASSESSMENT YEAR: 2010 - 11 I HAVE CAREFULLY CONSIDERED THE APPELLANTS SUBMISSIONS, THE OBSERVATIONS OF THE AO IN THE PENALTY ORDER AND THE FACTS OF THE CASE. IT IS AN ADMITTED FACT THAT THE TAX TO THE EXTENT OF RS. 1,31,533/ - WHICH WAS REQUIRED TO BE DEDUCTED ON PAYMENT S MADE BY THE APPELLANT WAS NOT ACTUALLY DEDUCTED. THE ONLY REASON GIVEN BY THE APPELLANT FOR SUCH NON DEDUCTION IS THAT HE WAS UNDER A BELIEF AS TAX HAD BEEN DEDUCTED ON HIS RECEIPTS HE WAS NOT REQUIRED TO DEDUCT TAX ON PAYMENTS MADE. THIS EXPLANATION OF THE APPELLANT CANNOT BE ACCEPTED BECAUSE IF THE APPELLANT WAS AWARE OF TAX BEING DEDUCTED FROM HIS RECEIPTS, HE OBVIOUSLY WOULD HAVE BEEN AWARE OF HIS OBLIGATION TO DEDUCT TA X FROM HIS PAYMENTS. SECTION 271C PROVIDES THAT WHEN A PERSON FAILS TO DEDUCT TAX AS REQUIRED UNDER THE PROVISIONS OF CHAPTER XVII - B THEN SUCH PERSON SHALL BE LIABLE TO PAY BY WAY OF PENALTY A SUM EQUAL TO THE AMOUNT OF TAX WHICH SUCH PERSON FAILED TO DEDUCT. IN THE APPELLANTS CASE IT IS AN ADMITTED FACT THAT THE TAX WAS REQUIRED TO BE DEDUCTED WHICH HAS NOT BEEN DEDUCTED. THEREFORE, THE AO HAS RIGHTLY IMPOSED THE PENALTY U/S 271C OF THE I.T. ACT AMOUNTING TO RS. 1,31,533/ - AND THE SAME IS THEREFORE CONFIRMED. 5. IT TRANSPIRE FROM THE ORDER OF THE LD. CIT(A) AND SUBMISSIONS OF THE AS SESSEE MADE BEFORE THE LD. CIT (A) THAT THE ONLY CONTENTION OF THE ASSESSEE WAS THAT THE TAX WAS NOT PAID UNDER THE BONA FIDE BELIEF THAT THE THAT IT WAS NOT REQUIRED TO BE PAID AT THE TIME OF MAKING PAYMENT. IN OUR CONSIDERED VIEW THE LD. CIT(A) HAS RIGHT LY REJECTED THE PLEA OF THE ASSESSEE . THERE IS NO MATERIAL ON THE RECORD, TO HOLD THAT THE IMPUGNED ORDER IS PERVERSE OR NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD. WE THEREFORE, UPHOLD THE FINDINGS OF THE LD. CIT (A) AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2010 - 2011 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 TH MAY , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 30/ 0 5 / 2017 6 ITA NO S . 2919 & 2920/MUM/2016 ASSESSMENT YEAR: 2010 - 11 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI