The Chief Municipal Officer, Depalpur V. The CIT (OSD) TDS Range, Indore

ITA 369/IND/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66670 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Assessee Lawyers: G R MANDOVRA
• Keywords: Reasonable cause; Competent authority
• Section: 273B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNALINDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 368 TO 370/IND/2012 A.YS. 2010-11, 2011-12 & 2012-13 CHIEF MUNICIPAL OFFICER DEPALPUR PAN AAALN 0562C :: APPELLANT VS COMMISSIONER OF INCOME TAX (OSD) TDS RANGE, INDORE :: RESPONDENT APPELLANT BY SHRI G.R. MANDOVRA RESPONDENT BY SHRI V.K. KARAN DATE OF HEARING 11.9.2012 DATE OF PRONOUNCEMENT 11.9.2012 O R D E R PER BENCH THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (OSD), TDS, INDORE, DATED 12.4.2012 FOR THE ASSESSMENT YEARS 2010-11, 2011-12 & 2012-13 2 IMPOSING PENALTY U/S 272A(2)(K) OF THE INCOME TAX A CT, 1961. 2. AT THE OUTSET, IT WAS ARGUED BY THE LEARNED SENI OR DR, SHRI V.K. KARAN, THAT NO APPEAL LIES AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (OS D), TDS, INDORE, BEFORE THE TRIBUNAL INSOFAR AS THE ORD ER WAS NOT PASSED U/S 251 OF THE INCOME TAX ACT, 1961. IN THE INSTANT CASE, THE ORDER WAS NOT PASSED EITHER BY TH E CIT(A) OR CIT(ADMN.) OR CCIT BUT IT WAS PASSED BY T HE LEARNED COMMISSIONER OF INCOME TAX (OSD), TDS WHICH , AS PER LEARNED SENIOR DR, IS NOT APPEALABLE BEFORE THE TRIBUNAL AS THE ASSESSEE SHOULD HAVE FILED APPEALS BEFORE THE COMPETENT AUTHORITY WHICH IS CIT(A) IN THESE CA SES. ON MERITS, HE RELIED ON THE ORDER PASSED U/S 272A(2 ) OF THE INCOME TAX ACT. 3. ON THE OTHER HAND, IT WAS SUBMITTED BY THE LEARN ED COUNSEL FOR THE ASSESSEE, SHRI G.R. MANDOVRA, THROU GH WRITTEN SUBMISSIONS THAT THERE WAS A DELAY OF 81 DA YS IN 3 FILING TDS STATEMENT 26Q. HE FURTHER SUBMITTED THA T E- RETURN 26Q FOR THE FIRST QUARTER FOR THE FINANCIAL YEAR 2011-12 WAS FILED DURING THE FINANCIAL YEAR ENDING 31 ST MARCH, 2012. THE TAX WAS DEDUCTED AND ALSO DEPOSIT ED IN GOVERNMENT TREASURY WITHIN THE PRESCRIBED TIME WITHOUT ANY DELAY. HE FURTHER CONTENDED THAT DEPAL PUR IS A SMALL TOWN WHERE FACILITIES OF TAX CONSULTANT AND E- FILING ARE NOT AVAILABLE. THE CRUX OF THE ARGUMENTS OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS THAT FILING OF E- STATEMENT OF TDS WAS MARGINALLY DELAYED DUE TO NON- AVAILABILITY OF SUCH FACILITIES AT DEPALPUR AND AS SUCH THERE WAS DELAY IN ENGAGING SUCH PERSONNEL AT INDOR E. AS PER THE LEARNED COUNSEL FOR THE ASSESSEE, BREACH OF THE PROVISIONS WAS A TECHNICAL OR VENIAL AND NOT INTENT IONAL OR WILFUL TO GET ANY BENEFIT FROM SUCH BREACH, THER EFORE, NO PENALTY SHOULD BE IMPOSED. OUR ATTENTION WAS ALS O INVITED TO THE PROVISIONS OF SECTION 272A(K) ACCORD ING TO WHICH PENALTY IS NOT MANDATORY BUT DISCRETIONARY AS PER THE RELEVANT PROVISIONS OF SECTION 273B AND IF THER E IS A 4 REASONABLE CAUSE FOR THE DELAY IN FILING TDS STATEM ENT, PENALTY SHOULD NOT BE IMPOSED. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFUL GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. AS PER THE PROVISIONS OF SECTION 253 OF THE ACT, ANY ASSES SEE AGGRIEVED BY THE ORDER PASSED BY THE CIT(APPEALS) U /SS 154, 250, 271, 271A OR SECTION 272A OR AN ORDER PAS SED BY COMMISSIONER U/SS 12AA, 263, 271 OR 272A OF THE ACT CAN FILE APPEAL BEFORE THE TRIBUNAL. IN THE INSTAN T CASE, WE FIND THAT THE IMPUGNED ORDER WAS PASSED BY THE COMPETENT AUTHORITY AS MENTIONED IN SECTION 253 I.E . BY THE LEARNED COMMISSIONER OF INCOME TAX (OSD), TDS, INDORE. FROM RECORD WE FIND THAT THE ASSESSEE HAS PROPERLY DEDUCTED TAX AND ALSO DEPOSITED THE SAME I N TIME IN GOVERNMENT TREASURY. HOWEVER, DUE TO THE F ACT THAT NAGAR PANCHAYAT/PARISHAD IS A SMALL PLACE WHER E FACILITY OF TAX CONSULTANT AND FILING OF TDS RETURN BY ELECTRONIC MEDIA WAS NOT AVAILABLE AT THE RELEVANT POINT OF 5 TIME. WE ALSO FIND THAT BEING A SMALL PLACE, STAFF WAS NOT CONVERSANT WITH THE PROCEDURE OF FILING STATEMENTS THROUGH ELECTRONIC MEDIA. KEEPING IN VIEW THE TOTA LITY OF FACTS AND CIRCUMSTANCES OF THE CASE VIS--VIS REASO NABLE CAUSE SHOWN BY THE ASSESSEE, AS STATED HEREINABOVE, WE MODIFY THE ORDER PASSED BY THE LEARNED CIT AND DIRE CT HIM TO RECOMPUTE PENALTY AFTER GIVING CONCESSION OF 2 MONTHS I.E. 60 DAYS WHILE COMPUTING THE PENALTY FOR THE DELAY IN FILING TDS STATEMENT 26Q. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED IN PART. ORDER PRONOUNCED IN OPEN COURT ON 11 TH SEPTEMBER, 2012. SD SD (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER SEPTEMBER 11, 2012 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/-11 6