KAMAL SINGH BAID, Jaipur V. ADDL. CIT, Jaipur

ITA 32/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5529 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Ignorance of law
• Section: 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO.32/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 . SHRI KAMAL SINGH BAID, E-155 ROAD NO. 11H, VKI AREA, JAIPUR. CUKE VS. THE ADDL. CIT, TDS, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABPPB 2689 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY S BY : SHRI FAZLUR REHMAN (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11 .01.2016. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/01/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OR LD. CIT (A)-III, JAIPUR DATED 28.10.2013 FOR THE ASSESSMENT YEAR 2009-10. T HE ASSESSEE HAS RAISED THE FOLLOWING GROUND :- THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF RS. 46,600/- IMPOSED BY THE LEARNED A.O. U/S 272 A(2)(K) OF I.T. ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING ASSE SSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAS FAILED TO FURNISH TH E QUARTERLY RETURN OF TDS FOR THE 1 ST , 2 ITA NO 32/JP/2014 A.Y. 2009-10. KAMAL SINGH BAID VS. ADDL.CIT TDS JAIUR. 2 ND , 3 RD AND 4 TH QUARTER IN THE PRESCRIBED FORM NO. 26Q IN TIME. T HE FORMS HAVE BEEN FILED LATE BY 466 DAYS FOR THE ALL THE QUARTERS. TH E CASE WAS REFERRED FOR INITIATION OF PENAL PROCEEDINGS U/S 272A(2)(K) TO ADDL. CIT (TDS) FOR THE DEFAULT COMMITTED UNDER SECTION 206 OF THE IT ACT. THE ASSESSEE VIDE SHOW CAUSE NOTICE DATED 14.03.2011 AND 03.08.2011 WAS ASKED TO SHOW CAUSE WHY PENALTY PROC EEDINGS SHOULD NOT BE INITIATED U/S 272A(2)(K) OF THE IT ACT. THE A/R OF THE ASSES SEE SUBMITTED THE EXPLANATION AS UNDER :- IT WAS EXPLAINED IN OUR EARLIER LETTER THAT THE D ELAY IN FILING OF TDS RETURNS IN 26Q WAS DUE TO THE FACT THAT SHRI NAVEEN JAIN WHO WAS LOOKING AFTER THIS WORK HAD LEFT SERVICES OF THE AS SESSEE AND AS SUCH THE RETURNS COULD NOT BE FILLED IN TIME. THE A SSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE QUARTERLY RETURNS IN TIME AND THEREFORE THE DELAY IS ONLY OF A TECHNICAL NATU RE. THE AO CONSIDERED THE EXPLANATION OF THE ASSESSEE B UT IT WAS NOT ACCEPTABLE TO HIM AS THERE WAS NO SUBSTANCE IN IT. THE AO AFTER REPRODUC ING THE RELEVANT PROVISIONS OF SECTION 206(1) OF THE IT ACT FOUND THE EXPLANATION OF THE ASSESSEE AS GENERAL IN NATURE AND TREATING THE DEFAULT TO BE A FIT CASE FOR LEVY OF PENALTY, IMPOSED THE PENALTY OF RS. 46,600/- @ RS. 100/- EACH DAY UNDER SECTION 272A(2) (K) OF THE IT ACT. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT (A), WHO HAS CONFIRMED THE ORDER OF THE AO AFTER DISCUSSING THE MATTER AT LENGTH IN PARA 4.3. OF HIS ORDER. 4. NOW THE ASSESSEE IS BEFORE US. 3 ITA NO 32/JP/2014 A.Y. 2009-10. KAMAL SINGH BAID VS. ADDL.CIT TDS JAIUR. 4.1. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL ON RECORD. IT IS AN ADMITTED POSITION THAT THERE IS DELAY IN FILING THE QUARTERLY RETURN OF TDS. BUT IT IS ALSO ADMITTED THAT TDS WAS PROPERLY DEDUCTED AND DEPOSIT ED IN THE ACCOUNT OF THE DEPARTMENT AND THERE IS NO LOSS CAUSED TO THE REVEN UE ON ACCOUNT OF DELAY IN FILING OF RETURN. IT IS THE CASE OF THE ASSESSEE THAT THE DE LAY IN FILING OF RETURN WAS CAUSED DUE TO THE FACT THAT THE PERSON RESPONSIBLE FOR FILING OF RETURN HAS LEFT THE SERVICES OF THE ASSESSEE AND NO INTIMATION IN RESPECT OF PENDING WO RK GIVEN TO THE ASSESSEE AND THEREBY THE DELAY CAUSED. THE COORDINATE BENCH OF THE TRIBUNAL IN THE MATTER OF UNION BANK OF INDIA VS. ADDITIONAL COMMISSIONER OF INCOME TAX (2013) 55 SOT 96, AFTER ALLOWING THE APPEAL OF THE ASSESSEE OBSERVED THAT I N THE MATTER OF ROYAL METAL PRINTERS PVT. LTD. (2010) 37 SOT 139 WHEREIN IT WAS HELD THA T ORDINARILY AN ASSESSEE IS DUTY BOUND TO KNOW THE PROVISIONS OF STATUTE BUT IN THE EVENT OF MAKING A CLAIM OF IGNORANCE OF LAW, IT IS FOR THE REVENUE TO EXAMINE THE PLEA J UDICIOUSLY KEEPING IN MIND THE FACT THAT THE ASSESSEE WHO HAS DEDUCTED TAX AND DEPOSITE D THE SAME WITHIN THE STIPULATED TIME COULD HAVE NORMALLY BEEN SAID TO BE A LAW ABID ING CITIZEN/ASSESSEE AND THE DELAY, UNDER SUCH CIRCUMSTANCES CANNOT ORDINARILY BE ATTRI BUTABLE TO WANTON NEGLIGENCE. IT WAS FURTHER HELD THAT THE DELAY IN FILING THE RETUR N EVEN IF THEY ARE CHARACTERIZED AS NEGLIGENCE ON THE PART OF THE ASSESSEE, CAN ONLY BE CONSIDERED AS A TECHNICAL OR VENIAL BREACH OF LAW FOR WHICH PENALTY SHOULD NOT BE LEVIE D AUTOMATICALLY. IN THE PRESENT CASE PLAUSIBLE EXPLANATION HAS BEEN GIVEN WHEREBY IT HAS BEEN SUBMITTED THAT THE PERSON RESPONSIBLE FOR FILING THE RETURN HAS LEFT THE SERV ICES. IT IS ALSO ADMITTED FACT THAT ON 4 ITA NO 32/JP/2014 A.Y. 2009-10. KAMAL SINGH BAID VS. ADDL.CIT TDS JAIUR. ACCOUNT OF SAID PERSON NAMELY NAVEEN JAIN LEAVING T HE EMPLOYER, THERE IS DELAY IN FILING THE RETURN. IN VIEW OF THE PECULIAR FACTS AND CIRCU MSTANCES OF THE CASE, WE DO NOT FEEL IT APPROPRIATE TO SUSTAIN THE ORDER. ACCORDINGLY THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE PENALTY IMPOSED FOR A SUM OF RS. 46,6 00/- IS CANCELLED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/20 16. SD/- SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/01/2016 DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI KAMAL SINGH BAID, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ADDL. CIT, TDS, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 32/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 5 ITA NO 32/JP/2014 A.Y. 2009-10. KAMAL SINGH BAID VS. ADDL.CIT TDS JAIUR.