SANTOSH YASHWANT TANDEL, NEW PANVEL V. ADDLL. CIT , TDS RANGE, THANE

ITA 3601/MUM/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8855 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Retrospective amendment; TDS
• Section: 208; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , G BENCH MUMBAI BEFORE : SHRI M.BALAGANESH, A CCOUNTANT M EMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 3601 /MUM/ 20 18 ( ASSESSMENT YEAR : 20 09 - 10 ) SHRI SANTOSH YASHWANT TANDEL PLOT NO.73 , SECTOR 15 NEW PANVEL MUMBAI 410 206 VS. ADDL. CIT, TDS RANGE GROUND FLOOR, QURESHI MANSION, GOKHALE ROAD NAUPADA, THANE (W) MAHARASHTRA - 400602 PAN/GIR NO. ADQPT9711L (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY NONE REVENUE BY SHRI T.S. KHALSA DAT E OF HEARING 19 / 07 /202 1 DATE OF PRONOUNCEMENT 02 / 08 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 3601/MUM/2018 FOR A.Y. 2009 - 10 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 2, PUNE I N APPEAL NO. PN/CIT(A) - 2/ACIT TDS/THN/64/2017 - 18 DATED 19/01/2018 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S.272A(2)(K) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY U/S.272A(2)(K) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. ITA NO . 3601/MUM/2018 SHRI SANTOSH YASHWANT TANDEL 2 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIALS AVAILA BLE ON RECORD. WE FIND THAT ASSESSEE IS AN INDIVIDUAL AND HAD COMPLIED WITH T HE PROVISIONS OF DEDUCTION OF TAX AT SOURCE AND DUE REMITTANCE THEREON , IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII - B OF THE ACT EXCEPT IN RESPECT OF BELATED FILING OF TDS R ETURNS U/S.200(3) R.W.R. 31A OF THE IT RULES, 1962 FOR THE VARIOUS QUARTERS OF A.Y.2008 - 09. THE DETAILS OF TAX DEDUCTED BY THE ASSESSEE FOR EACH QUARTER IN RESPECT OF VARIOUS EXPENDITURE S AND DAT E OF FILING QUARTERLY TDS RETURNS THEREON ARE TABULATED BOTH BY THE LD. AO AS WELL AS BY THE LD. CIT(A) IN THEIR RESPECTIVE ORDERS. SINCE, THERE WAS CONSIDERABLE DELAY IN FILING OF TDS RETURNS BY THE ASSESSEE, THE LD. AO PROCEEDED TO LEVY PENALTY U/S. 272A(2)(K) OF THE ACT IN THE SUM OF RS.1,47,668/ - . WE FIND THAT ASSESSEE HAD GIVEN REPLY IN RESPONSE TO SHOW - CAUSE NOTICE BY STATING THAT THE CENTRAL BOARD OF DIRECT TAXES VIDE NOTIFICATION DATED 18/03/2010 HAD NOTIFIED CHANGES IN DATA STRUCTURE AND VALIDATIONS FOR FILING E - TDS STATEMENT WITH RETROSPECTIVE EFFECT FROM 01/04/2009. AMONG MANY CHANGES CONTEMPLATED THEREIN, ONE OF THE CHANGE WAS THAT 100% PAN OF ITS SUPPLIERS , CUSTOMERS AND OTHER PARTIES WITH WHOM TRANSACTIONS WERE CARRIED OUT , SHOULD BE MADE AVAILABLE IN THE QUARTERLY TDS STATEMENTS. D UE TO LARGER NUMBER O F DEDUCTEES, THE WHOLE ACTIVITY OF COLLECTING OF PAN OF THE DEDUCTEES AND FILING OF TDS AND TCS RE TURNS BECAME CUMBERSOME TASK FOR THE ASSESSEE. ONCE ALL THE PANS OF 100% PARTIES WERE OBTAINED, THE ASSESSEE PROCEEDED TO ELECTRONICALLY FILE ITS TDS RETURNS WITH DELAY. HOWEVER, IT IS PERTINENT TO NOTE THAT ASSESSEE HAD DULY REMITTED THE TAX DEDUCTED AT SOURCE TO THE ACCOUNT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME. HENCE, IT COULD BE SAFELY CONCLUDED THAT THERE IS ABSOLUTELY NO LOSS TO THE EXCHEQU ER BECAUSE OF THE DELAY IN FILING TDS RETURNS FROM THE SIDE OF THE ASSESSEE AS ALL TAXES HAVE BEEN DULY DEPOSITED TO THE ACCOUNT OF CENTRAL GOVERNMENT WITHIN ITA NO . 3601/MUM/2018 SHRI SANTOSH YASHWANT TANDEL 3 TIME. WE HOLD THAT THOUGH, THERE IS A DELAY IN FILING OF QUARTERLY RETURNS BY THE ASSESSEE, THE SA ME IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, WOULD ONLY AMOUNT TO TECHNICAL VENIAL BREACH COMMITTED BY THE ASSESSEE. THE VERY PURPOSE OF FILING OF QUARTERLY TDS RETURNS WITHIN TIME IS ONLY TO ENSURE THAT THE DEDUCTEES ARE GIVEN DUE CREDI T OF TDS IN THEIR RESPECTIVE RETURNS OF INCOME. IN THE INSTANT CASE, THE ASSESSEE HAD ALSO SUBMITTED BEFORE THE LD. CIT(A) THAT DEDUCTEES HAD INDEED CLAIMED CREDIT FOR TDS IN THEIR RETURNS OF INCOME. WE HOLD THAT ASSESSEE WAS PREVENTED FROM REASONABLE CAUS E IN NOT FILING ITS TDS RETURNS WITHIN PRESCRIBED TIME AND IN ANY CASE HAD NOT CREATED ANY LOSS TO THE EXCHEQUER BY WAY OF DELAYED REMITTANCE OF TDS. THERE IS ONLY A MERE PROCEDURAL DELAY OF ELECTRONICALLY FILING ITS TDS RETURNS. IN OUR CONSIDERED OPINION, NO PENALTY COULD BE LEVIED FOR A MERE TECHNICAL VENIAL BREACH ON THE PART OF THE ASSESSEE. RELIANCE IN THIS REGARD IS ALSO PLACED ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ARUNACHALAM REPORTED IN 208 ITR 481. IN VIEW OF THE AFORESAID OBSERVATIONS AND RESPECTFULLY FOLLOWING THE SAME, WE HEREBY DIRECT THE LD. AO TO DELETE THE PENALTY LEVIED U/S. 272A(2)(K) OF THE ACT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOW ED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 02 / 08 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( PAV AN KUMAR GADALE ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED 02 / 08 / 2021 KARUNA , SR.PS ITA NO . 3601/MUM/2018 SHRI SANTOSH YASHWANT TANDEL 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//