Arun Kumar Goel, Yamunanagar V. ITO (TDS), Panchkula

ITA 385/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95472 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO.385/CHD/2015 ASSESSMENT YEAR: 2009-10 SHRI ARUN KUMAR GOEL, VS THE ITO (TDS), PROP. ARUN KUMAR GOEL & SONS PANCHKULA. SAHARANPUR ROAD, YAMUNA NAGAR. PAN: RTKA04885G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SING H RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 12.08.2015 DATE OF PRONOUNCEMENT : 13.08.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) KARNAL DATED 03.03.2014 FOR ASS ESSMENT YEAR 2009-10 CHALLENGING THE PENALTY UNDER SECTION 272B OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT AS PER SU B- SECTION (5B) OF SECTION 139A OF THE ACT, DEDUCTOR I S REQUIRED TO SPECIFY THE PANS OF DEDUCTEES IN THE QU ARTERLY TDS RETURNS FILED ON THE SYSTEM. IN CASE OF FAILUR E TO GIVE CORRECT PAN NUMBERS, PENALTY UNDER SECTION 272B OF THE 2 ACT MAY BE LEVIED. ON PROCESSING OF THE E-TDS QUAR TERLY STATEMENT OF DEDUCTION OF TAX IN FORM NO. 26Q FOR T HE FINANCIAL YEAR 2008-09 FILED ON 15.01.2009, IT WAS NOTICED THAT IN CONTRAVENTION OF PROVISIONS OF SECTION 139A OF THE ACT, PAN DETAILS OF TWO OUT OF 14 DEDUCTEES WERE FO UND TO BE INVALID/MISSING. THE ASSESSING OFFICER, ACCORDI NGLY VIDE SEPARATE ORDER LEVIED THE PENALTY OF RS. 10,000/- U NDER SECTION 272B OF THE ACT. 3. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE LD. CIT(APPEALS) AND RAISED MANY PLEAS INCLUDING THE SUBMISSION THAT ASSESSEE HAS FILED REVISED RETURN A ND HAS CORRECTED THE DEFECT, IF ANY. THE LD. CIT(APPEALS) , HOWEVER, DISMISSED THE APPEAL OF THE ASSESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE SIMILAR CIRCUMSTANCES, ITAT CHANDIGARH BENCH IN THE CASES OF ANIL KUMAR SUSHIL KUMAR GOEL V ITO AND INDERJEET POULTRY FARM V ITO IN ITA NOS. 728/2014 AND 729/201 4 ORDER DATED 31.03.2015 FOLLOWING ITS EARLIER DECISI ON HAS SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTO RED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH DI RECTION TO VERIFY THE CLAIM OF ASSESSEE REGARDING FILING OF CO RRECT STATEMENT AND DIRECTED TO RE-DECIDE THE MATTER IN I SSUE. COPY OF THE ORDER DATED 31.03.2015 IS PLACED ON REC ORD. 5. AFTER HEARING RIVAL SUBMISSIONS, WE FIND THAT IS SUE IS COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF ITAT CHANDIGARH BENCH DATED 31.03.2015 IN THE CASES OF A NIL 3 KUMAR SUSHIL KUMAR GOEL V ITO AND INDERJEET POULTRY FARM V ITO (SUPRA) IN WHICH IN PARAS 4 TO 7 IT WAS HELD AS UNDER : 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE SIMILAR CIRCUMSTANCES, ITAT CHANDIGARH A BENCH IN ITA NOS. 564 TO 567/CHD/2014 IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL VS ITO, PANCHKULA AND ITA 568/CHD/2014 IN THE CASE OF ASHOK KUMAR GOEL VS ITO, PANCHKULA VIDE ORDER DATED 10.09.2014 RESTORED THE MATTER TO THE FILE OF ASSESSING OFFICE R TO VERIFY THE CLAIM OF ASSESSEE FOR FILING THE CORRECT ION STATEMENT ON THE MATTER AND ISSUE. THE FINDINGS IN THIS ORDER IN PARA 10 TO 13 ARE REPRODUCED AS UNDER : 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT. THE ASSESSEE HAD FURNISHED E-TDS QUARTERLY STATEMENT RELATING TO ASSESSMENT YEAR 2009-10 AND IN THE SAID STATEMENT FOR QUARTER NO.3, THE ASSESSING OFFICER NOTED THAT THERE WAS DEFAULT IN QUOTING OF THE PAN NUMBERS. THE ASSESSEE HAD FAILED TO FURNISH THE CORRECT PAN NUMBERS OF DEDUCTEES TOTALING 3 TAX DEDUCTEES IN QUARTER NO.3 THE ASSESSEE CLAIMED THAT IT HAD CORRECTED ALL THE PAN NUMBERS OF THE TAX DEDUCTEES RELATING TO QUARTER NO.3 FOR FINANCIAL YEAR 2008-09, HOWEVER THE CIT(A) REJECTED THE CLAIM OF ASSESSEE AS NO PROOF WAS FILED. THE ASSESSEE ON THE OTHER HAND CLAIMS THAT IT HAD FURNISHED CORRECTION STATEMENT BEFORE THE PASSING OF ORDER OF CIT(A), WHICH HAS NOT BEEN TAKEN COGNIZANCE OF AND LEVY OF PENALTY CONFIRM. 11. WE ARE OF THE VIEW THAT IN CASE THE ASSESSEE HAD FURNISHED CORRECT PAN NUMBERS OF ALL THE TAX DEDUCTEES, THEN THE ASSESSEE IS NOT LIABLE TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT BUT IN CASE THE ASSESSEE HAD FAILED TO CORRECT THE PAN NUMBERS OF EVEN ONE DEDUCTEE, THEN THE ASSESSEE IS EXIGIBLE TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT. THE CLAIM OF THE ASSESSEE HAS NOT BEEN VERIFIED BY THE AUTHORITIES BELOW AND IN ALL FAIRNESS, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE VIS--VIS THE CORRECTION STATEMENT 4 FILED. IF THE SAME IS FOUND TO BE CORRECT, THEN NO PENALTY IS LEVIABLE UNDER SECTION 272B OF THE ACT FOR QUARTER NO.3 OF FINANCIAL YEAR 2008-09. IN CASE THE ASSESSEE HAD DEFAULTED IN CORRECTING ANY ONE PAN NUMBER OF ANY OF THE TAX DEDUCTEES THEN THE ASSESSEE IS LIABLE TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT AT RS.10,000/- FOR EACH OF THE QUARTERS. THE ASSESSING OFFICER SHALL AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND DECIDE THE ISSUE IN LINE WITH OUR DIRECTIONS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED FOR STATISTICAL PURPOSE. 12. THE FACTS & ISSUE IN ITA NOS. 565 TO 568/CHD/2014 ARE IDENTICAL TO FACTS IN ITA NO. 564/CHD/2014 AND OUR DECISION IN ITA NOS. 564 TO 568/CHD/2014 WOULD APPLY MUTATIS-MUTANDIS TO ITA NOS. 565 TO 568/CHD/2014 ALSO. 13. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN ITA NOS. 564 TO 568/CHD/2014 ARE ALLOWED FOR STATISTICAL PURPOSES. 5. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT O F THE ORDER OF THE TRIBUNAL IN THE CASE OF ASHOK KUMA R ARUN KUMAR GOEL (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER AND ISSUE TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO VER IFY THE CLAIM OF ASSESSEE REGARDING FILING OF THE CORRECTIO N STATEMENT WHO SHALL RE-DECIDE THE MATTER ACCORDINGL Y BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEIN G HERD TO THE ASSESSEE AS IS DIRECTED IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL (SUPRA). 6. IT IS STATED THAT FACTS ARE SAME IN THE CASE OF OTHER APPEAL IN ITA 729/CHD/2014 IN THE CASE OF INDERJEET POULTRY FARM. THE ORDER IN THE CASE OF A NIL KUMAR SUSHIL KUMAR GOEL SHALL APPLY IN THIS CASE AS ARE WELL. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. 5 6. BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CA SES OF ANIL KUMAR SUSHIL KUMAR GOEL V ITO AND INDERJEET PO ULTRY FARM V ITO (SUPRA) WE SET ASIDE THE ORDERS OF AUTHO RITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE O F ASSESSING OFFICER WITH DIRECTION TO VERIFY THE CLAI M OF ASSESSEE REGARDING FILING OF THE CORRECTION STATEME NT AND RE-DECIDE THE MATTER ACCORDINGLY BY GIVING REASONAB LE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST,2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH AUGUST,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH