Kewal Singh Kharbanda, Yamunanagar V. ITO (TDS), Panchkula

ITA 391/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95481 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 15-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard

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 NOS. 391 & 392/CHD/2015 (ASSESSMENT YEAR : 2009-10) KEWAL SINGH KHARBANDA, VS. THE INCOME TAX OFFICER(TDS), SAHARANPUR ROAD, YAMUNA NAGAR. PANCHKULA. PAN: RTKK01395C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 13.08.2015 DATE OF PRONOUNCEMENT : 18.08.2015 O R D E R PER BENCH : BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), KARNAL DATED 3.3.2014 FOR ASSESSMENT YEAR 2009-10, CHALLENGING THE LEVY OF PE NALTY UNDER SECTION 272B OF THE INCOME TAX ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT AS PER SUB- SECTION (5B) OF SECTION 139A OF THE ACT, THE DEDUCT OR IS REQUIRED TO SPECIFY THE PANS OF DEDUCTEES IN THE QU ARTERLY TDS RETURNS FILED ON THE SYSTEM. IN CASE OF FAILURE T O GIVE THE 2 CORRECT PAN NUMBER, PENALTY UNDER SECTION 272B OF T HE ACT MAY BE LEVIED. ON PROCESSING OF THE E-TDS QUARTERL Y STATEMENT OF DEDUCTION OF TAX IN FORM NO.26Q FOR TH E FINANCIAL YEAR 2008-09 FILED ON 27.4.2009, IT WAS NOTICED THA T IN CONTRAVENTION OF PROVISIONS OF SECTION 139A OF THE ACT, PAN DETAILS OF 13 OUT OF 28 DEDUCTEES WERE FOUND TO BE INVALID/MISSING. FURTHER, ON PROCESSING OF SIMILAR E-TDS QUARTERLY STATEMENT OF DEDUCTION OF TAX IN THE SIM ILAR FORM FILED ON 10.1.2009, IT WAS NOTICED THAT IN CONTRAVE NTION OF PROVISIONS OF SECTION 139A OF THE ACT, PAN DETAILS OF 6 OUT OF 16 DEDUCTEES WERE FOUND TO BE INVALID/MISSING. THE ASSESSING OFFICER, THEREFORE, INITIATED PENALTY PROCEEDINGS U NDER SECTION 272B OF THE ACT AND VIDE SEPARATE ORDER LEVIED THE PENALTY. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE TH E LEARNED CIT (APPEALS) AND RAISED MANY PLEAS INCLUDING THE S TATEMENT THAT THE ASSESSEE REVISED THE RETURN AND HAS CORRE CTED THE DEFECTS, IF ANY. THE LEARNED CIT (APPEALS), HOWEVE R, DISMISSED BOTH THE APPEALS OF THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE SIMILAR CIRCUMSTANCES, THE I.T.A.T., CHANDIG ARH BENCH IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL VS. ITO IN ITA NOS.386 TO 390/CHD/2015 VIDE ORDER DATED 3.8.2015 R ESTORED THE MATTER TO THE FILE OF THE ASSESSING. THE COPY OF THE ORDER IS FILED ON RECORD. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE ISSUE IS COVERED BY THE ORDER OF I.T.A.T., CHANDIGARH BENCH IN THE CASE OF ASHOK KUMAR ARUN K UMAR 3 GOEL VS. ITO (SUPRA), IN WHICH THE TRIBUNAL IN THE SAME CIRCUMSTANCES SET ASIDE THE ORDERS OF THE AUTHORITI ES BELOW AND RESTORED THE MATTER IN ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO VERIFY THE CLAIM OF ASSES SEE REGARDING FILING OF CORRECTION STATEMENT AND SHALL REDECIDE T HE MATTER ACCORDINGLY. THE FINDINGS IN PARAS 4 TO 8 OF THIS ORDER ARE REPRODUCED AS UNDER : 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE SIMILAR CIRCUMSTANCES THE I.T.A.T., CHANDIGARH A BENCH IN ITA NOS.564 TO 567/CHD/2014 IN THE CASE OF THE SAME ASSESSEE ASHOK KUMAR ARUN KUMAR GOEL AND IN ITA NO.568/CHD/2014 IN THE CASE OF ASHOK KUMAR GOEL VIDE ORDER DATED 10..9.2014 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE CLA IM OF THE ASSESSEE FOR FILING THE CORRECTION STATEMENT ON THE MATTER IN ISSUE. THE FINDINGS IN THIS ORDER IN PA RAS 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 4 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 DIREC T THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE VIS--VIS THE CORRECTION STATEMENT 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 I TA NOS. 564 TO 568/CHD/2014 ARE ALLOWED FOR STATISTICA L PURPOSES. 5 5. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT IN THE CASE OF ANIL KUMAR SUSHIL KUMAR GOEL AND INDERJEET POULTRY FARM IN ITA NO.728/CHD/2014 AND ITA NO.729/CHD/2014, THE TRIBUNAL FOLLOWING THE SAME ORDER IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL VIDE ORDER DATED 31.3.2015 ADOPTED THE SAME VIEW. COPIES OF BOTH THE ORDERS ARE PLACED ON RECORD. 6. CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES IN THE LIGHT OF FACTS OF THE CASE AND ORDER OF THE TRIBUNAL IN THE CASE OF THE SAME ASSESSEE ASHO K KUMAR ARUN KUMAR GOEL (SUPRA) AND ANIL KUMAR SUSHIL KUMAR GOEL (SUPRA), WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISS UE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE REGARDING FILING O F THE CORRECTION STATEMENT AND SHALL RE-DECIDE THE MATER ACCORDINGLY BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS IS DIRECTED IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL (SUPRA). 7. BOTH THE PARTIES STATED THAT THE ISSUE IS SAME IN THE REMAINING APPEALS FROM ITA NO.387 TO 390/CHD/2015. THE ORDER IN ITA NO.386/CHD/2015 IS, THEREFORE, FOLLOWED IN THESE CASES ALSO AND SHA LL APPLY SAME ORDER TO THE REMAINING APPEALS AS WELL. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. FOLLOWING THE ABOVE ORDER, WE SET ASIDE THE ORD ERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISS UE TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO VER IFY THE CLAIM OF THE ASSESSEE REGARDING FILING OF CORRECTION STAT EMENT AND 6 SHALL RE-DECIDE THE MATER ACCORDINGLY BY GIVING REA SONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AS IS DIRECTED IN THE CASE OF ASHOK KUMAR ARUN KUMAR GOEL (SUPRA). 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF AUGUST, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 TH AUGUST, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH