Xen Irrigation Construction Division, NOHAR V. JCIT, BIKANER

ITA 381/JODH/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9450 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-02-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 21-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVDESH KUMAR
• Keywords: Condonation of delay; TDS
• Section: 201; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI V.D. RAO, JUDICIAL MEMBER ITA NO: 381 / JU / 08 ASSTT. YEAR: 2000-01 XEN IRRIGATION CONSTRUCTION DIVISION, VS JOINT COMMISSIONER OF INCOME- NOHAR. TAX, RANGE II, BIKANER. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURESH OJHA, A.R., RESPONDENT BY : SHRI AVDESH KU MAR, D.R., ORDER PER V.D. RAO: JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT (APPEALS), BIKANER, DATED 14-07-2004 RE LATING TO AY 2000- 2001. 2 2. IN THIS APPEAL THERE IS A DELAY AND WE, THEREFOR E, PROCEEDED TO DECIDE THE FIRST DELAY AND WE DECIDE THE MERITS OF THE CAS E THEREAFTER. 3. IN SO FAR AS DELAY IS CONCERNED THE THE REGISTRY OF ITAT HAS RAISED AN OBJECTION THAT THE ORDER PASSED BY THE LD. CIT (A) WAS ON 14-07-2004 AND ACCORDING TO THE ABOVE ORDER THERE IS A DELAY OF 5 YEARS FOR FILING THE PRESENT APPEAL. IT WAS SUBMITTED BY THE ASSESSEE BEFORE TH E REGISTRY OF ITAT THAT THE ASSESSEE HAS RECEIVED THE ORDER ON 24-03-2008 A ND THERE WAS NO DELAY. SUBSEQUENTLY THE REGISTRY OF ITAT ADDRESS A LETTER DATED 28-11-2008 TO THE CIT (A), BIKANER TO FIND OUT WHEN THE ORDER DATED 1 4.7.2004 WAS RECEIVED BY THE ASSESSEE. IN RESPONSE TO THE ABOVE LETTER O F REGISTRY OF ITAT JODHPUR, THE LD CIT HAS WRITTEN A REPLY STATING THAT RECORDS OF ASSESSEE ARE NOT AVAILABLE FOR VERIFICATION. AS PER THE OFFICE OBJ ECTION THERE IS A DELAY OF 5 YEARS IN THE FILING OF THE APPEAL. BEFORE THE TRIBUNAL ONE OF THE EMPLOYEE OF THE ASS ESSEE ONE MR. SHIV CHARAN REGAR, EXECUTIVE ENGINEER FILED AN AFFIDAVIT DATED 16-5-2008 STATING THAT THIS OFFICE CAME TO KNOW WITH REGARD TO LEVY O F PENALTY ORDER PASSED BY THE CIT (A) FROM THE INCOME-TAX OFFICER (TDS), BIKA NER ON 18-03-2008 AND WHICH WAS RECEIVED ON 24 TH MARCH, 2008 AND THE ASSESSEE ALSO FILED DELAY 3 CONDONATION APPLICATION BY STATING THAT THE ORDER P ASSED BY THE CIT (A) RECEIVED ON 24.3.2008 SUBSEQUENTLY APPEAL WAS FILED ON 21-05-2008. WE, THEREFORE, ON PERUSAL OF THE ASSESSEES APPLICA TION FOR CONDONATION OF DELAY SUPPORTED BY THE AFFIDAVIT FIL ED BY ASSESSEES EMPLOYEE MR. SHIV CHARAN REGAR, EXECUTIVE EENGINEER, IT CAN BE SAFELY BELIEVED THAT THE ORDER OF THE CIT RECEIVED BY THE ASSESSEE ON 24 /3/2008 AND AFTER RECEIVING THE ORDER ASSESSEE HAS FILED APPEAL ON 2 1/5/2008. THEREFORE, IN OUR OPINION IT IS A FIT CASE TO CONDONE THE DELAY. WE ACCORDINGLY CONDONE THE DELAY BY ALLOWING THE DELAY CONDONATION APPLICA TION BY THE ASSESSEE. 4. IN SO FAR AS FACTS RELATING TO MERITS OF THE CAS E IS CONCERNED THE PENALTY WAS LEVIED OF RS. 49,869/- U/S 271 C ON THE GROUND THAT THE ASSESSEE FAILED TO DEDUCT THE SURCHARGE. THE ASSESSEE BEING A GOVE RNMENT DIVISION MADE A CERTAIN PAYMENTS TO THE CONTRACTORS AND TDS WAS OPE NLY DEDUCTED AND PAID IN TIME. THE ONLY DISPUTE IS WITH REGARD TO SURCHA RGE. IN THIS REGARD IT WAS SUBMITTED BEFORE THE AUTHORITIES BELOW THAT THERE W AS A HEAVY WORK LOAD IN THE OFFICE AND THE STAFF WHO ARE IN-CHARGE OF THE D EDUCTION OF THE TAX NOT FULLY AWARE OF THE INCOME TAX PROCEEDINGS AND THERE WAS A MISTAKE ON THE PART OF THE STAFF FOR NON-DEDUCTION OF THE SURCHARG E. IT WAS ALSO SUBMITTED BEFORE THE LOWER AUTHORITIES THAT WHEN IT WAS BROUG HT TO THE NOTICE OF THE 4 OFFICE, THE ENTIRE AMOUNT OF RS. 49,869/- ALONG WIT H INTEREST U/S 201 AS RAISED BY THE INCOME TAX OFFICER WAS PAID BEFORE I NITIATING THE PROCEEDINGS U/S 271 C OF THE ACT. THE ASSESSING OFFICER AS WEL L AS THE LD. CIT (A) IMPOSED AND CONFIRMED THE PENALTY U/S 271 C ON THE GROUND THAT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE THAT DUE TO EXCESS WORK AND BUSY SCHEDULE, THE EMPLOYEES NOT DEDUCTED THE SURCHARGE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TDS WAS DEDUCTED FROM THE PAYMENTS MADE TO THE CONTRACTORS AND DUE TO MISTAKE OF THE ASSESSEES EMPLOYEE THE SURCHARGE WAS NOT DEDUC TED. WHEN THE MISTAKE CAME TO THE NOTICE OF THE ASSESSEE HE PAID THE SURC HARGE ALONG WITH THE INTEREST THEREFORE, PENALTY CANNOT BE IMPOSED U/S 2 71 C OF THE ACT. ON THE OTHER HAND THE LD. D.R. STRONGLY SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE SIDES, PERUSE THE RECORDS AND GONE TO THE ORDERS OF THE AUTHORITIES BELOW. 6. THE ASSESSEE IS AN IRRIGATION CONSTRUCTION DIVIS ION. ASSESSEE HAS PAID SOME AMOUNT TO THE CONTRACTORS ON WHICH TDS WA S DULY DEDUCTED. THE ASSESSEE WAS FAILED TO DEDUCT THE SURCHARGE FOR WHI CH HE HAS GIVEN AN EXPLANATION THAT DUE TO HEAVY WORK AND BUSY SCHEDUL E THE EMPLOYEES WERE 5 NOT DEDUCTED THE SURCHARGE AND THE EMPLOYEES WHO AR E IN-CHARGE OF THE SECTION TO DEDUCT THE TAX NOT FULLY AWARE OF THE IN COME TAX PROCEDURE AND FURTHER SUBMITTED THAT THERE WAS A MISTAKE ON THEIR PART FOR NON-DEDUCTION OF SURCHARGE. IT IS ALSO SUBMITTED BEFORE US THAT WHE N IT WAS COME TO THEIR NOTICE WITH REGARD TO NON-DEDUCTION OF SURCHARGE TH E AMOUNT OF RS. 49,869/- ALONG WITH THE INTEREST WAS DEDUCTED AND IMMEDIATEL Y PAID TO THE TAX DEPARTMENT BEFORE INITIATING THE PROCEEDINGS U/S 27 1 C. THEREFORE, THE ASSESSEE HAS EXPLAINED REASONS FOR NON-DEDUCTION OF SURCHARGE AND WE FIND THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS REASO NABLE AND EVEN WHEN IT WAS COME TO HIS NOTICE HE IMMEDIATELY ACTED UPON DU ES AND PAID THE TAXES TO THE DEPARTMENT AND THE SAME WAS EXPLAINED IN DET AIL BEFORE THE AUTHORITIES BELOW. THE AUTHORITIES BELOW WITHOUT CONSIDERING T HE EXPLANATION GIVEN BY THE ASSESSEE 271 C WAS CONFIRMED. IT IS NOT THE C ASE OF THE REVENUE THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NEITHER FALSE NOR INCORRECT. IN OUR HUMBLE OPINION THE ASSESSEE HAS EXPLAINED ALL THE R EASONS FOR NOT CHARGING SURCHARGE AND IT IS NOT A FIT CASE TO IMPOSE PENALT Y UNDER 271 C OF THE ACT. WE, THEREFORE, TAKING INTO CONSIDERATION OF THE TOT AL FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO EXPLANATION GIVEN BY THE ASSES SEE WE SET SIDE THE ORDER PASSED BY THE CIT (A) AND APPEAL FILED BY THE ASSES SEE IS ALLOWED. 6 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS A LLOWED. 9. THE ORDER WAS PASSED IN THE OPEN COURT DATED ON 11 TH FEBRUARY, 2011. SD/- SD/- (S.V. MEHROTRA) (V.D. RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11 TH FEBRUARY,2011 KAMAL KUMAR COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. INCOME-TAX OFFICER 4. CIT 5. D/R 6. GUARD FILE