Ishwarcharan Builders Pvt.Ltd., Ahmedabad V. Addl.CIT, TDS Range, Ahmedabad

ITA 3402/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9096 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-03-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: A L THAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 3402/AHD/2015 (ASSESSMENT YEAR: 2012-13) ISHWARCHARAN BUILDERS PVT. LTD. A-502, SAPATH- IV, OPP: KARNAVATI CLUB, S.G. HIGHWAY, AHMEDABAD V/S THE ADDL. COMM. OF INCOME TAX, TDS RANGE, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCI8173N APPELLANT BY : SHRI A.L. THAKKAR, AR RESPONDENT BY : SHRI NARENDRA SINGH, SR. D.R . ( )/ ORDER DATE OF HEARING : 17 -03-20 16 DATE OF PRONOUNCEMENT : 28-03-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF LD. CIT(A)-8, AHMEDABAD DATED 07.09.2015 P ERTAINING TO A.Y. 2012-13. ITA NO. 3402 /AHD/2015 . A.Y. 2012-13 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE RELATES TO THE L EVY OF PENALTY OF RS. 63,900/- U/S. 272A(2)(K) OF THE ACT FOR THE ALLEGED LATE FILING OF STATEMENT IN FORM NO. 26Q FOR THE FINANCIAL YEAR 20 11-12. 3. THE APPEAL IS LATE BY TWO DAYS. THE ASSESSEE HAS FI LED A LETTER REQUESTING FOR THE CONDONATION OF DELAY. WE HAVE CA REFULLY GONE THROUGH THE CONTENTS OF THE REASONS. WE FIND THAT T HE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE, THERE FORE THE DELAY IS CONDONED. 4. A PERUSAL OF THE RECORD SHOWS THAT THERE WAS A DELA Y IN FILING OF FORM NO. 24Q RELATING TO TDS ON SALARIES AND FORM NO. 26 Q RELATING TO OTHER TDS. THE A.O LEVIED PENALTY OF RS. 1,41,600/-. 5. ASSESSEE STRONGLY AGITATED THE ISSUE BEFORE THE LD. CIT(A) VEHEMENTLY CONTENDING THAT THERE WAS NO TAX DEDUCTED AT SOURCE FOR THE FIRST, SECOND AND THIRD QUARTERS. THEREFORE, THERE WAS NO NECESSITY OF FILING THE STATEMENT IN FORM NO. 24Q. THE LD. CIT(A) DIREC TED THE A.O TO DELETE THE PENALTY OF RS. 77,700/- FOR THREE QUARTE RS AFTER VERIFYING THE CLAIM OF THE ASSESSEE. HOWEVER, LEVY OF PENALTY AMO UNTING TO RS. 63,900/- WAS CONFIRMED. 6. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. THE L D. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. RELIANCE WAS PLACED ON THE DECISION OF THE TRIBUNAL , CUTTACK BENCH IN THE CASE OF STATE BANK OF INDIA 56 TAXMANN.COM 311. PER CONTRA, THE LD. D.R. COULD NOT BRING ANY DISTINGUISHING DECISIO N IN FAVOUR OF THE REVENUE. ITA NO. 3402 /AHD/2015 . A.Y. 2012-13 3 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSEE HAD DE DUCTED THE TAX AND DEPOSITED THE SAME AS PER THE PROVISIONS OF THE LAW . THE FAULT IS ONLY IN FILING THE FORM NO. 26Q/24Q NOT ON TIME. WE FIND THAT SINCE THE TAX WAS DEPOSITED BY THE ASSESSEE AS PER THE PROVISIONS OF THE LAW, THERE IS NO LOSS TO THE REVENUE. WE FIND THAT THE A.O HAS LEVIED THE PENALTY IN MECHANICAL MANNER. THE DEFAULT OF THE ASSESSEE C AN ONLY BE AT BEST A TECHNICAL OR VENIAL BREACH. LAW IS WELL SETTLED T HAT A BONA FIDE BREACH CANNOT LEAD TO PENALTY AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL LTD. 83 ITR 26. RESPECT FULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT, WE SE T ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O TO DE LETE THE PENALTY OF RS. 63,900/-. 8. APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28 - 03 - 2016 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD