ITO, New Delhi V. M/s. Green Valley Plywood Ltd, New Delhi

ITA 3610/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2375 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-12-2009
• Assessment Year: 2008-2009
• Appeal Filed On: 21-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D N KAR
• Keywords: Opportunity of being heard; TDS
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 3610/DEL/2009 ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER WARD 50(5), ROOM NO. 505A, 5 TH FLOOR, LAXMI NAGAR DISTT. CENTRE, LAXMI NAGAR, DELHI. VS. M/S. GREEN VALLEY PLYWOOD LTD. 2941/3, CHUNA MANDI, PAHARGANJ, NEW DELHI. (APPELLANT) (RESPONDENT) PAN : AAACG 0323 P APPELLANT BY : SHRI D.N. KAR, C IT D.R. RESPONDENT BY : NONE O R D E R PER: C.L. SETHI, J.M. THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 0 1.06.2009 PASSED BY THE LD. CIT(A) DELETING THE PENALTY AMOUNTING TO RS. 10,000/- LEVIED BY THE AO U/S. 272B OF THE INCOME TAX ACT, 1961 (T HE ACT) FOR NOT FURNISHING PERMANENT ACCOUNT NUMBER OF THE DEDUCTEE S IN THE TDS RETURN FILED BY THE ASSESSEE. 2. WE HAVE HEARD THE LD. D.R. NONE FOR THE ASSESSE E WAS PRESENTED. 3. IN THIS CASE THE PENALTY LEVIED BY THE AO U/S. 2 72B HAS BEEN DELETED BY THE LD. CIT(A) BY OBSERVING AS UNDER:- I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE AO AND I FIND THAT THE ASSESSEES CONTENTION IS ITA NO. 3610/DEL/2009 PAGE 2 OF 3 CORRECT. THERE IS NO PENALTY LEVIABLE UNDER SECTIO N 272B OF THE I.T. ACT AS THE SECTION 272B DOES NOT COVER THE DEFAULTS COMMITTED UNDER SUB-SECTION 5B O F SECTION 139A. I, THEREFORE, CANCEL THE PENALTY OF RS. 10,000/- IMPOSED BY THE A.O. U/S. 272 OF THE INCOME TAX ACT IN THE CASE OF THE APPELLANT. 4. WITH REFERENCE TO THE OBSERVATION MADE BY THE LD . CIT(A), THE LD. D.R. HAS SUBMITTED THAT THE CIT(A) HAS DELETED THE PENALTY BY MERELY SAYING THAT THE ASSESSEES CONTENTION IS CORRECT WI THOUT DELIBERATING AND DISCUSSING AS TO HOW THE ASSESSEES CONTENTION IS C ORRECT SO AS TO NO PENALTY CAN BE LEVIED U/S. 272 B OF THE ACT. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. THE ASSESSEE IS NOT BEFORE US TO CLARIFY THE POSITION IN THE MAN NER IN WHICH THE LD. CIT(A) HAS PASSED THE ORDER. THE CIT(A) DELETED TH E PENALTY THAT THERE IS NO PENALTY LEVIABLE U/S. 272B AS THE SECTION 272B D OES NOT COVER THE DEFAULT COMMITTED U/S. 5B OF SECTION 139A OF THE AC T, BUT ON PERUSAL OF SECTION 272B(1), WE FIND THAT THIS SUB-SECTION COVE RS A FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 139A, WHICH WOULD ME AN THAT WHOLE SECTION OF 139A IS COVERED BY SUB-SECTION (1) OF SE CTION 272B OF THE ACT. IT IS NOT IN DISPUTE THAT SUB-SECTION (2) OF SECTIO N 272 DOES NOT COVER THE DEFAULT COMMITTED U/S. 5B OF SECTION 139A IN AS MUC H AS, SUB-SECTION (2) IS RELATED TO THE DEFAULT OF QUOTING AND INTIMATING A NUMBER WHICH IS FALSE, OR WHICH THE ASSESSEE EITHER KNOWS BELIEVES TO BE F ALSE OR DOES NOT ITA NO. 3610/DEL/2009 PAGE 3 OF 3 BELIEVE TO BE TRUE. SUB-SECTION (2) DOES NOT COVER THE CASES WHERE NO PAN HAS AT ALL BEEN QUOTED OR INTIMATED. THEREFORE , THE ANALOGY DRAWN BY THE CIT(A) SEEMS TO BE NOT CORRECT. WE, THEREFO RE, RESTOR THIS ISSUE BACK TO THE FILE OF THE CIT(A) FOR HIS FRESH ADJUDI CATION AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS WELL AS TO THE AO. THE CIT(A) SHALL PASS WELL SPEAKING AND REASONED ORDER AND SHALL DECIDE ALL THE ASPECTS OF THE MATTER, AND THEN DECIDE THE ISSU E AS TO WHETHER THE PENALTY LEVIED BY THE AO U/S. 272B WAS JUSTIFIED OR NOT. WE ORDER ACCORDINGLY. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS TR EATED TO BE ALLOWED FOR STATISTICAL PURPOSE. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N IMMEDIATELY AFTER THE HEARING WAS OVER ON 23 RD DECEMBER, 2009. (K.D. RANJAN) ACCOUNTANT MEMBER (C.L. SETHI) JUDICIAL MEMBER DATED: 23 RD DECEMBER, 2009. *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR