ITO (TDS) 3(2), MUMBAI V. CHIRAG SHAH, MUMBAI

ITA 3807/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3330 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 25-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DARSI SUMAN RATNAMDR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NOS.3807 TO 3809/MUM/2014 ASSESSMENT YEARS-2009-10 TO 2011-12 ITO (TDS) - 2(2)(3), 909, 9 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD (W), MUMBAI-400002 / VS. SHRI CHIRAG SHAH, 27, CRESCENT INDUSTRIAL ESTATE, KANJUR VILLAGE ROAD, KANJUR MARG (E), MUMBAI-400042 PAN NO. AAHPS5795B ( / REVENUE) ( / ASSESSEE) / REVENUE BY DR.DARSI SUMAN RATNAM-DR / ASSESSEE BY NONE / DATE OF HEARING : 30/05/2016 / DATE OF ORDER: 09/06/2016 ITA NO.3807 TO 3809/MUM/2014 SHRI CHIRAG SHAH 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDERS, AL L DATED 03/03/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ONLY GROUND RAISED IN THE PRESENT APPEA L PERTAINS TO THE DIRECTION OF THE LD. COMMISSIONER O F INCOME TAX (APPEAL) TO THE ASSESSING OFFICER TO RECOMPUTED THE PENALTY U/S 272A(2)(K) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) FROM THE DATE OF PAYMENT OF T AXES BY THE ASSESSEE TILL THE DATE OF FILING OF TDS RETURN, RELYING UPON THE DECISION OF M/S PORWAL CREATIVE VISION PVT . LTD. IGNORING THE PROVISION OF THE ACT AS THE ASSESSEE F AIL TO FURNISH TDS RETURN WITHIN DUE DATES PRESCRIBED IN R ULE 31A OF THE RULES. 2. DURING HEARING OF THESE APPEALS, DR. DARSHI SUMAN RATNAM, LD. DR, DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFFICER. ON THE OTHER HAND, NONE WAS PRESENT FOR THE ASSESSEE IN SPITE OF ISSUANCE OF REGISTERED AD NOTICE. ON 24/11/2015, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE, THEREFORE, REGISTERED AD NOTICE WAS ISSUE D TO THE ASSESSEE. ON 20/05/2016, THESE APPEALS WERE ADJOURN ED AT ITA NO.3807 TO 3809/MUM/2014 SHRI CHIRAG SHAH 3 THE REQUEST OF THE ASSESSEE. TODAY, I.E. ON 30/05/2 016, THE ASSESSEE NEITHER MOVED ANY APPLICATION FOR ADJOURNM ENT NOR MADE ANY EFFECTIVE REPRESENTATION TO PURSUE HIS APPEAL, THUS, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE QUA THE ASSESSEE AND TEND TO DISPOSE OF THE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE C OMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT PORTION FROM THE ORDER OF THE LD. COMMISSIONER OF I NCOME TAX (APPEAL). I HAVE CONSIDERED THE FACTS OF THE CASE, THE SUBMI SSION OF THE APPELLANT AND THE PENALTY ORDER U/S 272A(K). IT IS ADMITTED THAT CLAUSE(K), WHICH REQUIRES A PERSON TO DELIVER OR CA USE TO BE DELIVERED COPY OF THE STATEMENT WITHIN TIME SPECIFI ED UNDER SECTION 200(3), WAS APPLICABLE IN THE CASE OF THE A SSESSEE. UNDER THE PROVISIONS OF SECTION 200(3) READ WITH RU LE 31A, A PERSON DEDUCTING TAX AT SOURCE IS REQUIRED TO PREPA RE A STATEMENT IN THE PRESCRIBED FORM AND DELIVER THE SA ME TO THE PRESCRIBED INCOME-TAX AUTHORITY AFTER PAYING THE TA X DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT. FROM THE S TATEMENT FURNISHED IT IS NOTICED THAT THERE IS DELAY IN PAYM ENT OF TAXES AND FILING OF RETURN. HOWEVER, IT IS SUBMITTED BY A.R. THAT THE TAXES HAVE BEEN PAID ALONG WITH INTEREST. IT IS AN UN-DEBATABLE PROPOSITION THAT THE STATEMENT CAN ONLY BE FILED AF TER THE TAXES ARE PAID. FOR THE DELAY IN PAYMENT OF TAXES THE APP ELLANT HAS ITA NO.3807 TO 3809/MUM/2014 SHRI CHIRAG SHAH 4 TO PAY INTEREST U/S 201(1A). THE HONBLE MUMBAI ITA T IN THE CASE OF M/S PORWAL CREATION HAS HELD THAT PENALTY F OR THE LATE FILING OF RETURN SHOULD BE CALCULATED FROM THE DATE OF PAYMENT OF TAXES AS ASSESSEE COULD NOT HAVE FILED RETURN BE FORE THE TAXES ARE PAID. FOLLOWING THE DECISION OF HONBLE ITAT, THE A.O. IS DIRECTED TO MODIFY THE ORDER OF PENALTY FROM THE DATE OF PAYMEN T OF TAXES TO THE DATE OF FILING THE RETURN. IN THE RESULT, APPEALS OF A.YS. 2009-10, 2010-11 AN D 2011-12 ARE PARTLY ALLOWED. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THE ONLY MOOT QUESTION TO BE ADJUDICATED WHETHER THE PENALTY U/S 272A(2)(K) OF T HE ACT IS TO BE CALCULATED FROM THE DATE OF PAYMENT OF TAXES BY THE ASSESSEE OR TILL THE DATE OF FILING OF TDS RETURN. IT IS NOTICED THAT THE DELAY IN SUBMISSION OF TDS RETURN HAS BEEN CALCULATED BY THE LD. ASSESSING OFFICER THE STAND O F THE ASSESSEE IS THAT TAX WAS DULY DEDUCTED AND PAID BEF ORE FILING OF RETURN. ADMITTEDLY, AS PER THE PROVISIONS OF SECTION 200(3) OF THE ACT R.W.R. 31A, A PERSON DEDUCTING TA X AT SOURCE IS REQUIRED TO PREPARE A STATEMENT IN THE PR ESCRIBED ITA NO.3807 TO 3809/MUM/2014 SHRI CHIRAG SHAH 5 FORM AND TO DELIVER THE SAME TO THE PRESCRIBED INCO ME TAX AUTHORITY AFTER PAYING THE TAX DEDUCTED TO THE CRED IT OF THE CENTRAL GOVERNMENT. THERE IS A FACTUAL FINDING IN T HE IMPUGNED ORDER THAT TAXES ALONG WITH INTEREST WERE PAID BY THE ASSESSEE. CONSIDERING THE TOTALITY OF FACTS AND THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S PORWAL CREATION, WHEREIN, IT WAS HELD THAT PENALTY FOR LET FILING OF RETURN SHOULD BE CALCULATED FROM THE DATE OF PAYMENT OF TA XES, THEREFORE, WE FIND NO INFIRMITY IN THE DIRECTION TO THE ASSESSING OFFICER BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) TO MODIFY THE ORDER OF PENALTY AND TO RE-C OMPUTE THE SAME FROM THE DATE OF PAYMENT OF TAXES TO THE D ATE OF FILING OF RETURN. THE APPEALS OF THE REVENUE ARE, T HEREFORE, HAVING NO MERIT, CONSEQUENTLY, DISMISSED. FINALLY, THE APPEALS OF THE REVENUE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 30/05/2016. SD/- SD/- (RAJENDRA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER MUMBAI; # DATED : 09/06/2016 ITA NO.3807 TO 3809/MUM/2014 SHRI CHIRAG SHAH 6 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. %& '( / THE APPELLANT (RESPECTIVE ASSESSEE) 2. )*'( / THE RESPONDENT. 3. + + , ( %& ) / THE CIT, MUMBAI. 4. + + , / CIT(A)- , MUMBAI, 5. /01 )2 , + %& %23 , / DR, ITAT, MUMBAI 6. 14 5 / GUARD FILE. / BY ORDER, */& ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI