SAI SATYAM HOSPITALS PVT. LTD., MUMBAI V. ADDLL. CIT, TDS RG-, THANE

ITA 3220/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8576 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 15-05-2018
• Court: TRIBUNAL

Judgement Text

1 ITA NO.3220/MUM/2018 SAI SATYAM HOSPITALS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3220/MUM/2018 ( / ASSESSMENT YEAR: 2011-12) SAI SATYAM HOSPITALS P RIVATE LTD. F-5/1-102, CIDCO BUILDING KALAMBOLI, PANVEL RAIGAD-410 218. / VS. ADDL . CIT - TDS RANGE,THANE GROUND FLOOR, QURESHI MANSION GOKHALE ROAD, NAUPADA THANE (W)-400 602. ./ ./PAN/TAN AANCS-8472-Q / PNES-29209-F ( /APPELLANT ) : ( ! / RESPONDENT ) ASSESSEE BY : DR. PRAYAG JHA, ADVOCATE-LD.AR REVENUE BY : CHAUDHURY ARUN KUMAR SINGH-LD.DR ' #$% / DATE OF HEARING : 04/07/2019 &#$% / DATE OF PRONOUNCEMENT : 15/07/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AS PER SECTION 272A(2)(K) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT), IF ANY PERSON FAILS TO DELIVER OR CAUSE TO BE DELIV ERED A COPY OF THE STATEMENT WITHIN THE TIME SPECIFIED IN SUB-SECTION (3) OF SECTION 200 OR THE 2 ITA NO.3220/MUM/2018 SAI SATYAM HOSPITALS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 PROVISO TO SUBSECTION (3) OF SECTION 206C, THEN HE SHALL PAY, BY WAY OF PENALTY, A SUM OF RS.100/- FOR EVERY DAY DURING WHI CH THE FAILURE CONTINUES. SECTION 273B EXONERATE ASSESSEE FROM IMPOSITION OF PENALTY U/S 272(A)(2) IF THE ASSESSEE PROVES THAT THERE WAS REASONABLE CA USE FOR THE SAID FAILURE. 2. INVOKING THE PROVISIONS OF SECTION 272A(2)(K) AG AINST THE ASSESSEE WHO HAPPENS TO BE A RESIDENT CORPORATE ASSESSEE STATED TO BE ENGAGED IN MEDICAL FIELD, LD. ADDITIONAL COMMISSIONER OF INCOM E TAX, TDS RANGE, THANE IMPOSED A PENALTY OF RS.38,900/- VIDE ORDER D ATED 08/03/2013, ON ACCOUNT OF DELAY OF 389 DAYS IN FILING TDS RETURN I N FORM NO. 26Q FOR QUARTER-1 OF FINANCIAL YEAR 2010-11. WHILE DOING SO , THE ASSESSEE WAS ISSUED & SERVED WITH REQUISITE SHOW-CAUSE NOTICE U/ S 272A(2)(K)/ 274 R.W.S 200(3) DATED 12/09/2012. HOWEVER, THE SAME REMAINED UN-RESPONDED AND THE ASSESSEE FAILED TO DEFEND THE SAME. ACCORDINGLY , IMPUGNED PENALTY OF RS.38,900/- WAS LEVIED AGAINST THE ASSESSEE U/S 272 A(2)(K). 3. BEFORE LD. CIT(A), THE ASSESSEE, IN THE STATEMEN T OF FACTS, PLEADED THAT THERE WAS DELAY IN UPLOADING THE RETURNS AS TH E DIRECTORS OF THE ASSESSEE COMPANY WERE DOCTORS AND THE UPLOADING WAS DUE TO MERE OVERSIGHT. HOWEVER, THERE WAS NO EVASION OF TAX OR LOSS TO THE GOVERNMENT SINCE THE ASSESSEE DEDUCTED AS WELL AS PAID THE TAX ES TO THE GOVERNMENT EXCHEQUER. HOWEVER, THE ASSESSEE FAILED TO MAKE ANY APPEARANCE BEFORE LD. FIRST APPELLATE AUTHORITY ON VARIOUS DATES OF H EARING AND ACCORDINGLY, LD. CIT(A) PROCEEDED EX-PARTE TO CONFIRM THE STAND OF L OWER AUTHORITY. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US WITH FOLLOWING GROUNDS OF APPEAL: - 3 ITA NO.3220/MUM/2018 SAI SATYAM HOSPITALS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 ON THE FACTS AND IN CIRCUMSTANCES IN THE CASE AND I N LAW- 1. THE LEARNED CIT(A) ERRED IN DISMISSING THE ASSE SSEE'S APPEAL ON THE GROUND THAT THERE WAS NO COMPLIANCE ON 15.03.2018, THOUGH THE ASSESSEE HAD FILED A LETTER ON 15.03.2018 AT 11 AM SEEKING ADJOURNMENT A ND THE HEARING WAS ADJOURNED TO 27.03.2018 BUT THE LEARNED CIT(A) PASS ED HIS ORDER ON 15.03.2018 ITSELF. 2. WITHOUT PREJUDICE TO GROUND NO. 1, THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE ASSESSEE COMPANY HAD DEDUCTED TAX AND HAD DEPOSITED THE SAME IN THE GOVERNMENT TREASURY AND D ELAY WAS ONLY IN UPLOADING THE TDS RETURN AND THERE WAS NO LOSS TO REVENUE. 3. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATIN G THE FACT THAT ASSESSEE COMPANY HAD REASONABLE CAUSE FOR NOT UPLOADING THE TDS RETURN WITHIN TIME AND ALSO THE FACT THAT PERIOD OF DELAY SPECIFIED IN THE SHOW CAUSE NOTICE WAS NOT CORRECT. 4. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO ONE ANOTHER. 4. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE, MAKING OUT A CASE OF REASONABLE CAUSE, INTER-ALIA, PLEADED THAT THERE WAS DELAY IN FILING THE TDS STATEMENT DUE TO NON-AVAILABILITY OF PAN OF THE DED UCTEES, WITHOUT MENTIONING OF WHICH, THE RETURN COULD NOT BE UPLOAD ED. THE OTHER SUBMISSIONS ARE ON THE SAME LINE AS MADE IN STATEME NT OF FACTS BEFORE LD. FIRST APPELLATE AUTHORITY. 5. UPON DUE CONSIDERATION, WE FIND THAT ADMITTEDLY THE DIRECTORS OF THE ASSESSEE COMPANY WERE DOCTORS WHO MAY NOT BE WELL-V ERSED WITH TECHNICALITIES OF TDS PROVISIONS. THE PERUSAL OF TD S STATEMENT FILED BY THE ASSESSEE ESTABLISH THAT THERE WERE 30 DEDUCTEE RECO RDS AND PAN WAS QUOTED IN ALL THE RECORDS. THIS WOULD GIVE SOME STR ENGTH TO THE SUBMISSIONS THAT THE STATEMENT WAS FILED ONLY AFTER OBTAINING P AN OF ALL THE DEDUCTEES. UNDISPUTEDLY, DUE TDS HAS BEEN DEDUCTED AS WELL AS DEPOSITED BY THE ASSESSEE IN THE GOVERNMENT TREASURY. 4 ITA NO.3220/MUM/2018 SAI SATYAM HOSPITALS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 6. PROCEEDING FURTHER, WE FIND THAT LOTS OF CHANGES WERE BROUGHT ABOUT IN FINANCIAL YEAR 2010-11 BY THE ACT IN FILING OF E-TD S RETURNS WHEREIN THERE WAS A NECESSITY TO QUOTE CENT PERCENT VALID PERMANE NT ACCOUNT NUMBERS OF THE PAYEES IN THE E-TDS RETURNS AND ONLY THEREAFTER , THE E-TDS RETURN COULD BE VALIDATED AND UPLOADED IN THE INCOME TAX SYSTEM. THIS POSITION HAS BEEN BROUGHT ABOUT BY CBDT NOTIFICATION NO. S.O. 1261(E) [NO. 41/2010 (F.NO. 142/27/2009-SO(TPL)], DATED 31-5-2010. 7. THEREFORE, FINDING THERE WAS NO LOSS TO THE REVE NUE AND THE DELAY IN FILING OF THE E-TDS RETURNS WAS UNINTENTIONAL ON TH E PART OF THE ASSESSEE AND KEEPING IN VIEW THE ASSESSEES BACKGROUND, WE A RE INCLINED TO DELETE THE IMPUGNED PENALTY. WE ORDER SO. 8. GROUND NO. 1 STAND DISMISSED. GROUND NOS. 2 & 3 STANDS ALLOWED. GROUND NOS. 4 & 5 ARE GENERAL IN NATURE. THE APPEAL STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2019. SD/- SD/- (SANDEEP GOSAIN) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 15/07/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 5 ITA NO.3220/MUM/2018 SAI SATYAM HOSPITALS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 2. !' / THE RESPONDENT 3. # ( ) / THE CIT(A) 4. # / CIT CONCERNED 5. $%!& ' , ' , / DR, ITAT, MUMBAI 6. %)*+ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.