AOne Logistica Private Limited, CHENNAI V. JCIT, CHENNAI

ITA 39/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8150 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 30-12-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 08-01-2015
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NOS. 38 & 39/MDS/2015 / ASSESSMENT YEARS : 2010-11 & 2011-12 AONE LOGISTICA PRIVATE LTD . NO.53, VADA AGARAM, 1 ST STREET OFF NELSON MANICKAM ROAD CHENNAI 600 094 VS. THE JT. COMMISSIONER INCOME-TAX TDS RANGE-I CHENNAI [PAN AAECA 7199 M ] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI T BANUSEKAR, CA /RESPONDENT BY : DR B NISCHAL , JCIT / DATE OF HEARING : 30 - 12 - 2015 ! / DATE OF PRONOUNCEMENT : 05 - 02 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINS T THE COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (AP PEALS)-VII, CHENNAI, DATED 17.9.2014 FOR ASSESSMENT YEARS 2010- 11 AND 2011-12. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS, WE HEARD THEM TOGETHER AND DISPOSING OF THE SAME BY T HIS COMMON ORDER. ITA NO.38 & 39/15 :- 2 -: 2. SHRI T BANUSEKAR, LD. REPRESENTATIVE FOR THE ASSES SEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERAT ION IS LEVY OF PENALTY U/S 272A(2)(K) OF THE ACT. 3. ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE H AS DEDUCTED TAX AT SOURCE AS REQUIRED UNDER THE SCHEME OF THE INCOME- TAX ACT, 1961. HOWEVER, THE RETURN AS REQUIRED UND ER THE SCHEME COULD NOT BE UPLOADED. THE LD. REPRESENTATIVE FURT HER SUBMITTED THAT SOME OF THE DEDUCTEES COULD NOT PROVIDE THE PERMANE NT ACCOUNT NUMBER(PAN). UNLESS AND UNTIL THE PAN IS PROVIDED BY THE DEDUCTEES, THE ASSESSEE COULD NOT UPLOAD THE STATEMENT FOR DE DUCTION OF TAX. THE LD. REPRESENTATIVE CLARIFIED THAT THE ENTIRE TA X DEDUCTED IS PAID TO THE GOVERNMENT ACCOUNT AND WHAT IS DEFAULT IS IN RE SPECT OF FEW DEDUCTEES THE STATEMENT COULD NOT BE UPLOADED. THE REFORE, THERE WAS A REASONABLE CAUSE FOR THE DELAY IN UPLOADING THE S TATEMENT AND HENCE, PENALTY U/S 272A(2)(K) CANNOT BE LEVIED. 4. ON THE CONTRARY, DR B NISCHAL, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT UNDER THE SCHEME OF T HE INCOME-TAX ACT, 1961, THE ASSESSEE IS EXPECTED TO DEDUCT TAX AND ALSO FILE QUARTERLY STATEMENT IN FORM 24Q. ACCORDING TO THE LD. DR, FILING OF RETURN IS A STATUTORY FUNCTION OF THE DEDUCTOR U/S 200(3) OF THE ACT. NON-AVAILABILITY OF PAN OF THE DEDUCTEES CANNOT BE AN EXCUSE FOR NOT ITA NO.38 & 39/15 :- 3 -: FILING THE RETURN AS REQUIRED UNDER THE STATUTORY P ROVISION. ACCORDING TO THE LD. DR, IT IS FOR THE ASSESSEE TO COLLECT T HE PAN IN ADVANCE AND UPLOAD THE QUARTERLY STATEMENT AS REQUIRED UNDER TH E SCHEME OF THE ACT, THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED TH E PENALTY LEVIED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE DEDUCTED TAX AT SOURCE. THE ONLY DISPUTE IS THAT THE ASSES SEE COULD NOT UPLOAD THE QUARTERLY STATEMENT IN RESPECT OF THE TAX DEDUC TED AT SOURCE. THE CONTENTION OF THE ASSESSEE IS THAT PAN OF SOME OF THE DEDUCTEES IS NOT AVAILABLE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE DEDUCTED TAX AND PAID THE SAME TO THE GOVE RNMENT ACCOUNT, MERE FAILURE TO UPLOAD THE QUARTERLY STATEMENT AS R EQUIRED U/S 200(3) OF THE ACT WILL NOT RESULT IN LEVY OF AUTOMATIC PEN ALTY. OF COURSE, IT IS STATUTORY FUNCTION OF THE ASSESSEE TO UPLOAD THE Q UARTERLY STATEMENT AS REQUIRED UNDER THE STATUTORY PROVISION. THE FAC T REMAINS THAT UNLESS THE PAN OF THE DEDUCTEES IS AVAILABLE WITH T HE ASSESSEE, THE ASSESSEE COULD NOT UPLOAD THE STATEMENT. IT IS NOT THE CASE OF THE DEPARTMENT THAT THE ASSESSEE CAN UPLOAD THE STATEM ENT IN ABSENCE OF THE PAN OF THE DEDUCTEES. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN RESPECT OF THOSE DED UCTEES WHOSE PAN IS NOT AVAILABLE WITH THE ASSESSEE, THERE WAS A RE ASONABLE CAUSE FOR ITA NO.38 & 39/15 :- 4 -: THE DELAY IN UPLOADING THE QUARTERLY STATEMENT AS R EQUIRED UNDER THE SCHEME OF THE INCOME-TAX ACT, 1961. HOWEVER, IN RE SPECT OF THOSE DEDUCTEES, WHOSE PANS ARE AVAILABLE, THE ASSESSEE IS EXPECTED TO UPLOAD THE QUARTERLY STATEMENT AS PROVIDED UNDER TH E ACT. IN THE CASE BEFORE US, THE PENALTY IS LEVIED ONLY IN RESPECT OF THOSE DEDUCTEES WHOSE PAN IS NOT AVAILABLE WITH THE ASSESSEE. THE REFORE, THE ASSESSING OFFICER IS NOT JUSTIFIED IN LEVYING PENAL TY U/S 272A(2)(K) OF THE ACT. ACCORDINGLY, THE ORDERS OF THE LOWER AUTH ORITIES ARE SET ASIDE AND THE PENALTY LEVIED U/S 272A(2)(K) OF THE ACT I S DELETED. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 5 TH FEBRUARY, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF