Shree Jaganath Agency, Bhubaneswar V. JCIT (TDS), Bhubaneswar

ITA 42/CTK/2014

• Counselvise Citation: 4222114 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: P R MOHANTY
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI P. K. BABNSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 42 & 43 / CTK /2014 (ASST. YEAR S : 200 8 - 0 9 & 2010 - 11 ) M/S. SHREE JAGATNATH AGENCY, PLOT NO. 1482, JHUNJHUNWALA GARDEN , ASHOK NAGAR, BHUBANESWAR . VS. JCIT (TDS) , BHUBANESWAR. PAN NO. AAMFS 1455 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.R. MOHANTY A.R. DEPARTMENT BY : SHRI N.K. NEB - D.R. DATE OF HEARING : 03 / 0 2 /2015 . DATE OF PRONOUNCEMENT : 1 1 / 0 3 /201 5 . O R D E R PER D.T. GARASIA , J .M TH E S E TWO APPEAL S BY THE SAME ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF LD. CIT (A) - 1 , BHUBANESWAR EACH DATED 2 0 / 11 /201 3 FOR THE A.Y S . 2008 - 0 9 & 2010 - 11 . SINCE THE COMMON ISSUE INVOLVED, AND THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER . 2 2. FOR THE SAKE OF CONVENIENCE, FACTS ARE TAKEN FROM I.T.A.NO. 42/CTK/2014. THE FOLLOWING GROUNDS ARE RAISED IN THIS APPEAL : - 1. FOR THAT THAT THE ORDER OF THE LEARNED CIT (APPEALS - 1), BHUBANESWAR DATED 20.11.2013 RECEIVED ON 07.12.2013 PASSED IN APPEAL NO. 0609/11 - 12 DATED 17.02.2012 CONFIRMING THE PENALTY ORDER DATED 22.12.2011 PASSED BY THE JCIT (TDS), BHUBANESWAR, (HEREINAFTER REFERRED TO AS LEARNED 'A.O') IS NOT JUST AND LEGAL ON THE FA C TS AND IN THE CIRCUMSTANCES OF THE CASE. 2. FOR THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE IMPOSITION OF PENALTY U/S.272A(2)(K) OF THE I.T. ACT 1961 FOR RS.2,48,297/ - (BEING THE PENALTY LEVIED ON THE PRETEXT OF DELAY IN FILING QUARTERLY TDS IN FORM NOS.24Q AND 26Q RESPECTIVELY) BY THE LEARNED A.O IGNORING THE PROVISIONS OF SEC - 273B WHICH CLEARLY EXCLUDES IMPOSITION OF PENALTY IF THE DEDUCTOR I S PREVENTING FROM TIMELY SUBMISSION OF THE QUARTERLY STATEMENT BY SOME REASONABLE CAUSE. 3. FOR THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE CONTENTIONS RAISED & DOCUMENTS SUBMITTED BY THE APPELLANT IN THE COURSE OF APPEAL PROCEEDINGS REGARDING THE FACT THAT THE DEDUCTEES ARE LORRY OWNERS AND THEY HAVE NOT FURNISHED THEIR PAN IN TIME WHICH HAD PREVENTED THE APPELLANT FROM FILING THE E - TRD RETURN IN TIME AND WITHOUT ASSIGNING ANY VALID & COGENT REASONS CONFIRMED THE PENALTY IMPOSED BY LE ARNED JCIT (TDS), BHUBANESWAR. 4. FOR THAT THE ISSUE OF NOTICE OF DEMAND FOR RS. 2,48,2977 - ON PENALTY BY THE LEARNED A.O AND CONFIRMED BY LEANED CIT (APPEAL - I) SERVED ON THE APPELLANT 7 TH DEC' 2013 IS NOT CORRECT AND IS NOT LEGAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. FOR THAT OTHER PASSED BY THE LEARNED CIT (APPEAL - I), BHUBANESWAR IS BAD IN LAW AND LIABLE TO BE SQUASHED ON THE ABOVE GROUND OR SUCH OTHER GROUNDS IF ANY TO BE URGED AT THE TIME OF HEARING OF THE APPEAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 3. SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED THE QUARTERLY TDS STATEMENTS IN FORM NOS. 24Q & 26Q FOR DIFFERENT QUARTERS FOR THE F.Y. 2007 - 0 8 . SINCE, THERE WAS NO REASONABLE 3 EXPLANATION FOR DELAY IN FILING 24Q/26Q STATEMENTS, THE JCIT (TDS) IMPOSED THE PENALTY U/S. 272A(2)(K) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT', FOR SHORT). THE TOTAL DELAY CALCULATED BY JCIT FOR ALL EIGHT QUARTERLY STATEMENTS COM ES TO 11720 DAYS. THEREFORE, THE JCIT HAS LEVIED P ENALTY OF RS. 2,48,297 / - BY UNDERNEATH TABLE: - FORM TYPE F/YEAR QUARTER DUE DATE DATE OF FILING DELAY IN DAYS AMOUNT OF TDS INVOLVED 24Q 2007 - 08 1ST 15.7.2007 22.12.2011 1621 0 24Q - DO - 2 ND 15.10.2007 - DO - 1529 1,23,547 24Q - DO - 3 RD 15.1.2008 - DO - 1437 0 24Q - DO - 4 TH 15.6.2008 - DO - 1285 25,330 26Q - DO - 1ST 15.7.2007 16.12.2011 1615 0 26Q - DO - 2 ND 15.10.2007 - DO - 1523 29,859 26Q - DO - 3 RD 15.1.2008 - DO - 1431 53,618 26Q - DO - 4 TH 15.6.2008 - DO - 1279 15 ,943 TOTAL 11 , 720 2,48,297 4 . MATTER WAS CARRIED TO THE LD. CIT(A) AND LD. CIT(A) HAS CONFIRMED THE ACTION OF ASSESSING OFFICER. 5. LEARNED AR SUBMITTED BEFORE US THAT THIS MATTER IS SQUARELY COVERED BY THE DECISION OF THIS BENCH OF THE TRIBUNAL IN I.T.A.NO. 263/CTK/2013 , WHEREIN THE HONBLE TRIBUNAL HAS DELETED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 272A(2)(K) OF THE ACT . 6. LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LEARNED AR. 4 7. WE HAVE HEARD R IVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT ASSESSEE HAD FILED QUARTERLY STATEMENTS OF TDS IN FORM NOS. 24Q & 26Q OF DIFFERENT QUARTER FOR THE F.Y. 2007 - 08 WITH DELAY OF 11720 DAYS , FOR WHICH HE HAS NOT GIVEN ANY EXPLANATION . THEREFORE, THE ASSESSING OFFICER HAD IMPOSED THE PENALTY OF RS. 2,48,297/ - U/S. 272A(2)(K) OF THE ACT, WHICH WAS AFFIRMED BY THE LD. CIT(A). WE FIND THAT THIS MATTER IS SQUARELY COVERED BY THE DECISION OF THI S BENCH OF THE TRIBUNAL IN THE CASE OF PRAKASH KISHORE NAYAK VS. ACIT IN I.T.A.NO. 263/CTK/2013 BY ORDER DATED 12/06/2013. THE TRIBUNAL HAS HELD AS UNDER: - 5. WE HAVE HEARD RIVAL SUBMISSIONS. A PERUSAL OF THE FACTS IN THESE PRESENT CASES CLEARLY SHOW THAT THE FY INVOLVED IS 2008 - 09 RELEVANT AY 2009 - 10 DURING WHICH PERIOD THE QUARTERLY STATEMENTS HAD TO BE FILED THROUGH NSDL OR OTHER APPROVED AGENCIES I.E. THIRD PARTIES WHO ARE NOT UNDER THE CONTROL OF THE ASSESSEE. AS IT IS NOTICED THAT EVEN THE PRESEN T CASES, THE FACTS REMAIN THE SAME, WE ARE OF THE VIEW THAT THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DIRECTOR, PRINTING, STATIONERY & PUBLICATION & ORS., REFERRED TO SUPRA, IS CLEARLY APPLICABLE TO THE FACTS OF THESE PRESENT CAS ES ALSO. UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DIRECTOR, PRINTING, STATIONERY & PUBLICATION & ORS., REFERRED TO SUPRA, THE PENALTY AS LEVIED BY THE AO AND CONFIRMED BY THE CIT(A) U/S. 272A(2)(K) OF THE ACT STANDS DELETED. 8. SO, B Y RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER IN THE CASE OF PRAKASH KISHORE NAYAK VS. ACIT IN I.T.A.NO. 263/CTK/2013 DATED 12/06/2013, WE DELETE THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). 5 9. THE FACTS I N I.T.A.NO. 43/CTK/2014 ARE SIMILAR TO THE FACTS INVOLVED IN I.T.A.NO. 42/CTK/2014. THEREFORE, OUR FINDING S GIVEN IN FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS TO THE I.T.A.NO. 43/CTK/2014. 10. IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES, 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH AT CUTTACK S D / - S D / - (P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 1 T H MARCH , 201 5 . VR/ - COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD. CIT 4 . THE CIT(A) 5 . THE D.R 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., CUTTACK.