A.C.I.T., Circle-1, Gwalior V. Sh. Ramendra Singh Kushwah, Gwalior

ITA 302/AGR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62891 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 05-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 302/AGRA/2012 ASSTT. YEAR : 2007-08 A.C.I.T., CIRCLE-1, VS. SRI RAMENDRA SINGH KUS HWAH, GWALIOR 103, NEW SHIVAJI NAGAR, THATIPUR, GWALIOR. (PAN: AEBPK 7522 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : SHRI RAJENDRA SHARMA, ADVOCATE DATE OF HEARING : 10.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 14.12.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 30.04.2012 FOR THE ASSESSMENT YEAR 20 07-08, CHALLENGING THE CANCELLATION OF PENALTY U/S. 271(1)(C) OF THE IT AC T. 2. THE AO IMPOSED PENALTY U/S. 271(1)(C) OF THE IT ACT FOR DISALLOWANCE OF EXPENSES U/S. 40(A)(IA) OF THE IT ACT. THE ASSESSEE PLEADED BEFORE THE LD. CIT(A) THAT THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT A DVANCE PAYMENT DID NOT ENTAIL DEDUCTION OF TAX AT SOURCE AND IT IS ONLY WHEN THE FINAL BILL SETTLED, THE LIABILITY OF DEDUCTION OF TAX AT SOURCE ARISES. IT WAS UNDER THI S BELIEF, THE DEDUCTION WAS MADE ITA NO. 302/AGRA/2012 2 ON 31.03.2005, I.E., THE DATE WHEN ACCOUNTS WERE CL OSED AND THE BILLS OF SUB- CONTRACTORS WERE SETTLED. THE TAX ON THE PAYMENT WA S DEDUCTED ON 31.03.2005 AND DEPOSITED IN THE GOVERNMENT ACCOUNT IN SUBSEQUENT Y EAR WITHIN THE TIME ALLOWED UNDER THE ACT. THEREFORE, ON DISALLOWANCE OF EXPENS ES, THE PENALTY IS NOT LEVIABLE. IT WAS ALSO PLEADED THAT SINCE THE TAX IS PAID AS P ROVIDED U/S. 139(1), NO PENALTY IS LEVIABLE. FURTHER, SIMILAR PENALTY WAS LEVIED ON DI SALLOWANCE U/S. 40(A)(IA) OF THE ACT IN PRECEDING ASSESSMENT YEAR 2005-06 AND THE LD . CIT(A) CANCELLED THE PENALTY VIDE ORDER DATED 04.11.2007 AND THE DEPARTMENTAL AP PEAL HAS BEEN DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 29.10.2010. THE LD. CIT(A ) FOUND THE CONTENTION OF THE ASSESSEE TO BE CORRECT. IT WAS ADMITTED FACT THAT T HE ASSESSEE HAS DEPOSITED THE AMOUNT OF TAX TO THE CREDIT OF CENTRAL GOVERNMENT B EFORE THE DUE DATE OF FILING OF RETURN AND IN PRECEDING ASSESSMENT YEAR 2005-06, TH E LD. CIT(A) CANCELLED THE PENALTY ON THE SAME FACTS AND THE TRIBUNAL DISMISSE D THE DEPARTMENTAL APPEAL. THE LD. CIT(A) REPRODUCED THE ORDER OF THE TRIBUNAL IN THE IMPUGNED ORDER AND FOUND THAT THE FACTS ARE SAME. THEREFORE, THE PENALTY IS CANCELLED BY FOLLOWING THE ORDER OF THE TRIBUNAL IN PRECEDING ASSESSMENT YEAR. 3. THE ASSESSEE IN THE PAPER BOOK FILED THE ORDER O F THE TRIBUNAL FOR PRECEDING ASSESSMENT YEAR 2005-06 IN ITA NO. 77/AGRA/2009 DAT ED 29.10.2010 AND STATED THAT THE ISSUE IS COVERED BY THE ORDER OF THE TRIBU NAL ON SAME FACTS IN EARLIER ASSESSMENT YEAR. THE LD. DR DID NOT DISPUTE THE STA TEMENT OF LD. COUNSEL FOR THE ITA NO. 302/AGRA/2012 3 ASSESSEE AND STATED THAT THE ISSUE IS COVERED IN FA VOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL ON THE SAME FACTS. 4. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES IN THE LIGHT OF THE FACTS AND ORDER OF THE TRIBUNAL DATED 29.10.2010 (SUPRA), WE FIND THAT THE ISSUE INVOLVED IN THE DEPARTMENTAL APPEAL IS SAME AS HAVE BEEN CON SIDERED BY THE TRIBUNAL IN THE CASE OF THE SAME ASSESSEE IN PRECEDING ASSESSMENT Y EAR 2005-06. THE LD. CIT(A), WAS, THEREFORE, JUSTIFIED IN FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE PURPOSE OF CANCELING THE PENALTY. NO CHANGE IN FACTS HAS BEEN BROUGHT TO OUR NOTICE. THE DEPARTMENT APPEAL HAS NO MERIT AND IS, ACCORDINGLY, DISMISSED. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY