Principal Officer, SBBJ, JODHPUR V. Addl. CIT, JODHPUR

ITA 355/JODH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62055 (ITAT-JODHPUR)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, SMC, JODHPUR BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NOS.354, 355 & 356/JODH/2011 ASSESSMENT YEARS : 2008-09, 2009-10 & 2010-11 PRINCIPAL OFFICER, VS. ADDL. COMMISSIONER OF INC OME TAX SBBJ, (TDS), JODHPUR. C/O. SHRI U.C. JAIN, ADVOCATE, SHATRUNJAY HARI SINGH NAGAR, PALI ROAD, JODHPUR. (TAN: ADBPT 7101 K). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA JAIN, A.R. RESPONDENT BY : SHRI G.R. KOKANI, D.R. DATE OF HEARING : 09.07.2012 DATE OF PRONOUNCEMENT : 09.07.2012 ORDER THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST COMMON ORDER DATED 13.07.2011 OF LD. CIT(A), JODHPUR. 2. IN ALL THESE APPEALS, COMMON ISSUE IS INVOLVED H AVING IDENTICAL FACTS AND THE APPEALS WERE HEARD TOGETHER. SO, THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 2 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN ALL THESE APPEALS RELATE TO THE CONFIRMATION OF PENALTY LEVIED BY THE ASSESSING OFF ICER (A.O.) UNDER SECTION 272A(2)(K) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AMOUNTING TO RS.5,400/-, RS.36,454/- AND RS.10,000/ - FOR THE ASSESSMENT YEARS 2008-09, 2009-10 & 2010-11 RESPECTIVELY. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT IN THIS CASE A SURVEY WAS CONDUCTED AND IT WAS FOUND THAT THE ASSESSEE HAD DEPOSITED TDS TO THE GOVERNMENT ACCOUNT BUT FAILED TO FILE QUARTERLY E-RETURNS WITHIN THE PERIO D STIPULATED, HENCE PENALTY PROCEEDINGS UNDER SECTION 272A(2)(K) OF THE ACT WER E INITIATED FOR THE FOLLOWING YEAS AS UNDER :- F.Y. 2007-08 F.NO QUARTER DUE DATE RETURN FILED ON DELAY IN DAYS PENALTY @ RS.100/- PER DAY AMOUNT OF PENALTY LEVIABLE 26Q 1 ST Q JULY 15, 2007 28.07.2007 12 12X100 RS.1200/- 26Q 3 RD Q JAN, 15, 2008 31.01.2008 15 15X100 RS.1500/- 24Q 1 ST Q JUL 15, 2007 28.07.2007 12 12X100 RS.1200/- 24Q 3 RD Q JAN, 15, 2008 31.01.2008 15 15X100 RS.1500/- TOTAL RS.5400/- F.Y. 2008-09 F.NO QUARTER DUE DATE RETURN FILED ON DELAY IN DAYS PENALTY @ RS.100/- PER DAY AMOUNT OF PENALTY LEVIABLE ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 3 26Q 1 ST Q JULY 15, 2008 19.03.2009 246 246X100 RS.7423/- 26Q 2 ND Q OCT, 15, 2008 19.03.2009 154 154X100 RS.7731/- 26Q 3 RD Q JAN 15, 2008 19.03.2009 62 62X100 RS.6200/- 24Q 1 ST Q JUL, 15, 2008 15.01.2009 183 183X100 RS.6000/- 24Q 2 ND Q OCT, 15, 2008 15.01.2009 91 91X100 RS.9100/- TOTAL RS.36454/- F.Y. 2009-10 F.NO QUARTER DUE DATE RETURN FILED ON DELAY IN DAYS PENALTY @ RS.100/- PER DAY AMOUNT OF PENALTY LEVIABLE 26Q 3 RD Q JAN, 15, 2010 21.01.2010 5 5X100 RS.500/- 24Q 1 ST Q JULY,15, 2009 10.11.2009 117 117X100 RS.6500/- 24Q 2 ND Q OCT, 15, 2009 10.11.2009 25 25X100 RS.2500/- 24Q 1 ST Q JAN, 15, 2010 21.01.2010 5 5X100 RS.500/- TOTAL RS.10000/- 5. THE EXPLANATION OF THE ASSESSEE BEFORE THE A.O. WAS THAT THE DELAY WAS ON ACCOUNT OF COMMUNICATION GAP BETWEEN BRANCH MANAGER AND THE PERSON RESPONSIBLE FOR FILING OF TDS RETURN. THEREFORE, T HE PENALTY SHOULD NOT BE LEVIED. HOWEVER, THE A.O. DID NOT FIND MERIT IN THE SUBMISS ION OF THE ASSESSEE BY OBSERVING THAT THERE WAS NO REASONABLE CAUSE FOR SU CH FAILURE. ACCORDINGLY, THE IMPUGNED PENALTIES WERE LEVIED. THE ASSESSEE CARRI ED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE PRINCIPAL OFFICER DEDUCTED T AX AS REQUIRED BY LAW AND ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 4 DEPOSITED THE SAME WITHIN THE TIME ALLOWED TO THE A SSESSEE BUT THERE WAS A DELAY IN FILING QUARTERLY E-RETURN FOR WANT OF FACILITY AVAI LABLE AT VILLAGE OSIAN, DIST. JODHPUR. THUS, THE PRINCIPAL OFFICER WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN FILING QUARTERLY E-RETURN IN TIME BECAUSE OF NON-AVAILABILITY OF FACILITY IN FILING E-RETURN AT OSIAN. IT WAS ALSO STATED THAT THERE WAS A REASONABLE CAUSE AND THERE WAS NO WILLFUL DELAY ON THE PART OF THE ASSES SEE AND THAT THE TECHNICAL BREACH WOULD HAVE BEEN CONSIDERED SYMPATHETICALLY. IT WAS ALSO STATED THAT AS PER PROVISION OF SECTION 273B, NO PENALTY COULD HAVE BE EN IMPOSED UNDER SECTION 272A(2) OF THE ACT IF THERE WAS REASONABLE CAUSE FO R THE SAID FAILURE. LD CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HE LD THAT NO SUCH GROUND WAS BEFORE THE A.O. NOR DELAY WAS ON ACCOUNT OF NON-AVA ILABILITY OF FACILITY OF FILING OF E-RETURN IN VILLAGE OSIAN. ACCORDING TO THE LD. CI T(A), THE MISTAKE WAS NOT BONAFIDE, THEREFORE, THE PENALTY LEVIED BY THE A.O. WAS CONFIRMED. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE IS SUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER DATED 09.12.2011 OF TH IS BENCH OF THE TRIBUNAL IN THE CASE OF SATE BANK OF BIKANER & JAIPUR, LALGARH, BIK ANER VS. ADDL. CIT (TDS), JODHPUR IN ITA NOS.54 TO 56/JODH/2010 FOR THE A.YS. 2006-07 & 2007-08. COPY OF THE SAID ORDER WAS FURNISHED. ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 5 7. IN HIS RIVAL SUBMISSIONS, THE LD. DEPARTMENTAL R EPRESENTATIVE STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT( A). 8. AFTER CONSIDERING THE SUBMISSIONS OF THE BOTH TH E PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SIMILAR ISSUE HAVING IDE NTICAL FACTS HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 09.12.2011 IN THE AFORESAID REFERRED CASE OF STATE BANK OF BIKANER & JAIPUR VS. ACIT (TDS) AND T HE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARAGRAPH NOS.6 TO 9 OF ITATS ORDER WHICH READ AS UNDER :- 6. IN CASE OF RAJASTHAN TRIBAL AREA DEVELOPMENT CO OPERATIVE FEDERATION LTD., 60 TTJ 427, THE JAIPUR BENCH OF TH E TRIBUNAL HAS HELD THAT WE HAVE NOTICED THAT THERE IS NO DEFAULT ON THE PART OF THE APPELLANT EITHER IN DEDUCTING THE TAX AT SOURCE OR IN DEPOSITING THE SAME INTO GOVT. ACCOUNT. THIS FACT HAS NOT BEEN DI SPUTED EVEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. THE ONLY DEFA ULT IS IN FURNISHING STATEMENT OF TDS IN FORM NO.26 WHICH IN VIEW OF THE APPELLANT EXPLANATION IS ONLY A TECHNICAL DEFAULT, FOR WHICH WE ARE OF THE OPINION THAT SUCH A PENAL ACTION IS NOT JUSTIFI ED, BECAUSE THE APPELLANT DEFAULT IS PURELY OF A TECHNICAL OR VENIA L NATURE. 7. THE HON'BLE SUPREME COURT IN CASE OF HINDUSTAN S TEEL LTD. VS. STATE OF ORISSA, 83 ITR 26 (HON'BLE SUPREME COURT), HAS HELD THAT WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELI EF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED THE S TATUTE THEN IN THOSE CASES THERE WAS NO JUSTIFICATION IN IMPOSING THE PE NALTY. 8. THE DECISION OF JAIPUR BENCH OF THE TRIBUNAL (SU PRA) AND THE PRINCIPLE LAID DOWN BY THE HON'BLE SUPREME COURT WE RE CONSIDERED BY THE DELHI BENCH OF THE TRIBUNAL IN CASE OF DISTRICT EXCISE OFFICER, 69 TTJ 312 AND PENALTY LEVIED ON SIMILAR GROUND WAS CA NCELLED. SINCE THIS IS A DEFAULT OF TECHNICAL OR VENIAL NATURE, TH EREFORE, IN OUR CONSIDERED VIEW, PENALTY LEVIED AND CONFIRMED BY LD . CIT(A) IS NOT ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 6 JUSTIFIED . ACCORDINGLY, WE DELETE THE LEVY OF PEN ALTY FOR LAST QUARTER OF FINANCIAL YEAR 2005-06. 9. SIMILARLY FOR THE FIRST QUARTER OF FINANCIAL YEA R 2006-07, FORM NO.24Q WAS FILED LATE BY 259 DAYS AND FOR THE SECON D QUARTER FORM NO.24Q WAS SUBMITTED LATE BY 167 DAYS. FOR THE DEF AULT OF FIRST QUARTER AND SECOND QUARTER, THE ASSESSING OFFICER L EVIED PENALTY OF RS.18,900 AND RS.16,700/- RESPECTIVELY. HOWEVER, T HE TAX DUE WAS DEDUCTED AND DEPOSITED IN GOVT. ACCOUNT IN TIME. T HE DUE DATE WAS 15.7.2006. HOWEVER, RETURN WAS FILED ON 31.3.2007. SIMILARLY FOR SECOND QUARTER THE DUE DATE WAS 15.10.2006, HOWEVER , THE FORM WAS FILED ON 31.3.2007. IT IS SEEN THAT TAX WAS DEPOSI TED IN TIME BEFORE THE DUE DATE. THE DEFAULT IN SUBMITTING FORM NO.24Q IS ALSO SIMILAR AS WAS 4 TH QUARTER OF 2005-06. WE HAVE ALREADY CANCELLED THE LEVY OF PENALTY BY HOLDING THAT DEFAULT WAS TECHNICAL AND V ENIAL IN NATURE AND, THEREFORE, PENALTY WAS NOT LEVIABLE. ON SIMIL AR REASONING, THE PENALTY LEVIED FOR THIS FINANCIAL YEAR IS ALSO CANC ELLED. 9. SINCE THE FACTS OF THE PRESENT CASES ARE IDENTIC AL TO THE FACTS INVOLVED IN THE AFORESAID REFERRED CASES OF STATE BANK OF BIKANER & JAIPUR VS. ACIT IN ITA NOS.54 TO 56/JODH/2010, SO RESPECTFULLY FOLLOWING THE AFOR ESAID REFERRED ORDER DATED 09.12.2011, THE PENALTY LEVIED BY THE A.O. AND SUST AINED BY THE CIT(A) IS DELETED. 10. IN THE RESULT, APPEALS ARE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 09.07.012) SD/- (N.K. SAINI) ACCOUNTANT MEMBER DATE: 9 TH JULY, 2012 PBN/* ITA NOS.354, 355 & 356/JODH/2011 A.YS. 2008-09, 2009-10 & 2010-11 7 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLA TE TRIBUNAL, JODHPUR TRUE COPY