Shri Mukesh Benara, Kanpur V. Astt. Commissioner of Income Tax, Kanpur

ITA 367/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4775 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 11-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.367/LKW/2015 ASSESSMENT YEAR:2008-09 A.C.I.T., CENTRAL CIRCLE, KANPUR. VS SHRI MUKESH BENARA, 24/4, THE MALL, KANPUR. PAN:ABWPB3697H (RESPONDENT) (APPELLANT) SHRI ASHISH JAISWAL, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY 11/01/2016 DATE OF HEARING 03/02/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A)-IV, KANPUR DATED 23/02/2015 FOR THE ASSESSME NT YEAR 2008-09. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED AS MANY AS 10 GROUNDS BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING CONFIRM ING THE PENALTY IMPOSED BY THE ASSESSING OFFICER OF RS.5 LACS FOR DELAYED P AYMENT OF SELF ASSESSMENT TAX U/S 221(1) READ WITH SECTION 140A(1) AND 140A(3 ) OF THE ACT. 3. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 31/03/2009 AS PER WHICH TAX WAS PAYABLE OF RS.53.28 LACS OUT OF WHICH RS.38.52 LACS WAS PAI D BY THE ASSESSEE BY WAY OF ADVANCE TAX AND RS.1.26 LACS WAS PAID BY WAY OF TDS AND THE ASSESSEE HAD THE LIABILITY TO PAY RS.13.50 LACS AS SELF ASSE SSMENT TAX U/S 140A BEFORE FILING THE RETURN OF INCOME BUT THIS AMOUNT WAS PAI D BY THE ASSESSEE PARTLY 2 IN OCTOBER, 2009 OF RS.7.50 LACS AND BALANCE RS.6 L ACS ON 17/02/2009. HE SUBMITTED THAT FOR THIS DEFAULT, THE ASSESSING OFFI CER HAS IMPOSED PENALTY OF RS.5 LACS U/S 221 OF THE ACT WHICH IS VERY EXCESSIV E AND SHOULD BE REDUCED TO A REASONABLE AMOUNT. IN SUPPORT OF THIS CONTENT ION, HE PLACED RELIANCE ON A TRIBUNAL ORDER RENDERED IN THE CASE OF TOP GLA SS CAPITAL MARKET LTD. VS. JT. CIT AS REPORTED IN [2015] 69 SOT 317 (MUM). H E SUBMITTED THAT IN THAT CASE, THE TRIBUNAL UPHELD PENALTY OF 2.5% OF SELF A SSESSMENT TAX. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN THE PRESENT CASE, RETURN OF INCOME WAS FILED BY THE ASS ESSEE ON 31/03/2009 AS NOTED BY ASSESSING OFFICER IN THE PENALTY ORDER AND AS PER THIS RETURN OF INCOME, THE ASSESSEE HAD THE LIABILITY OF TAX PAYME NT OF RS.53,23,602/- BUT THE ASSESSEE HAD MADE PAYMENT OF ONLY RS.38,52,220/ - AS ADVANCE TAX AND RS.1,25,660/- AS TDS AND THE BALANCE AMOUNT OF RS.1 3.50 LACS WAS PAID BY THE ASSESSEE IN TWO INSTALLMENTS AFTER FILING OF RE TURN OF INCOME. THE FIRST INSTALLMENT WAS PAID ON 31/10/2009 OF RS.7.50 LACS AND THE BALANCE AMOUNT OF RS.6 LACS WAS PAID BY THE ASSESSEE ON 17/12/2009 . HENCE, IT IS SEEN THAT THE ASSESSEE HAD MADE PAYMENT OF ENTIRE AMOUNT OF O UTSTANDING SELF ASSESSMENT TAX WITHIN 9 MONTHS FROM THE DATE OF FIL ING OF RETURN OF INCOME. IN THE CASE OF TOP GLASS CAPITAL MARKET LTD. (SUPRA ), THE TRIBUNAL HAS NOTED THAT THE ASSESSEE HAS MADE PAYMENT OF SELF-ASSESSME NT TAX WITHIN 5 MONTHS FROM THE DATE OF FILING OF RETURN OF INCOME AND UNDER THESE FACTS, THE TRIBUNAL REDUCED THE AMOUNT OF PENALTY FROM 5% OF SELF ASSESSMENT TAX CONFIRMED BY CIT(A) TO 2.5% OF SELF ASSESSMENT TAX. IN THAT CASE, THE ASSESSING OFFICER HAD IMPOSED PENALTY OF 10% OF SEL F ASSESSMENT TAX. SINCE IN THE PRESENT CASE, THE ASSESSEE HAS MADE PAYMENT OF SELF ASSESSMENT TAX AFTER ALMOST 8 MONTHS FROM THE DATE OF FILING OF R ETURN OF INCOME, IN OUR 3 CONSIDERED OPINION, PENALTY OF 5% OF UNPAID SELF AS SESSMENT TAX AT THE TIME OF FILING OF RETURN OF INCOME AS ON 31/03/2009 IS R EASONABLE IN THE FACTS OF THE PRESENT CASE. HENCE, WE CONFIRM THE PENALTY OF RS.67,500/- BEING 5% OF OUTSTANDING SELF-ASSESSMENT TAX OF RS.13.50 LACS AND DELETE THE BALANCE AMOUNT OF PENALTY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:03/02/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR