GULAM MUSTAFA KHAN, THANE V. ADDL CIT TDS RG, MUMBAI

ITA 4206/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1231 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR ANUPAMA SINGLA LD
• Assessee Lawyers: DEVENDRA H JAIN LD AR

Judgement Text

ITA NOS.4206 & 4207/M/2016 GULAM MUSTAFA KHAN ASSESSMENT YEARS 2009-10 & 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO. 4206/MUM/2016 & ./ I.T.A. NO. 4207/MUM/2016 ( / ASSESSMENT YEARS: 2009-10 & 2010-11) GULAM MUSTAFA KHAN A/2 SIMLA PARK C.H.S.L. MUMBAI PUNE ROAD KAUSA MUMBRA THANE 400 612 / VS. ADDITIONAL COMMISSIONER OF INCOME TAX TDS RANGE THANE ./ ./PAN/GIR NO. AACPK-8068-J ( !%& /APPELLANT ) : ( '( %& / RESPONDENT ) !%& ) / APPELLANT BY : SHRI DEVENDRA H. JAIN. LD. AR '( %& ) / RESPONDENT BY : DR. ANUPAMA SINGLA, LD. DR +), / DATE OF HEARING : 11/04/2017 -./), / : 12 /04/2017 ITA NOS.4206 & 4207/M/2016 GULAM MUSTAFA KHAN ASSESSMENT YEARS 2009-10 & 2010-11 2 DATE OF PRONOUNCEMENT / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THESE ARE TWO APPEALS BY ASSESSEE FOR ASSESSMENT YEARS [AY] 2009-10 & 2010- 11 WHICH ASSAILS SEPARATE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1 [CIT(A)], MUMBAI BOTH DATED 04/03/2016 QUA CONFIRMATION OF PENALTY U/S 272A(2)(K) FOR RS.67,500/- AND RS.58,200/- RESPECTIVELY. SINCE, BO TH APPEALS SPRINGS OUT OF COMMON SET OF FACTS, WE DISPOSE-OFF BOTH THE APPEALS BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST, WE TAKE UP ITA NO.4 206/M/2016 WHERE THE ASSESSEE IS AGGRIEVED BY IMPOSITION OF PENALTY OF RS.67,500/- F OR LATE FILING OF QUARTERLY TDS RETURNS. 2. BRIEFLY STATED, THE ASSESSEE, BEING DEDUCTOR HAV ING TAN PNEG07330B WAS FOUND TO HAVE FILED QUARTERLY TDS RETURNS FOR QUARTER 1, 2 & 3 FOR THE IMPUGNED AY WITH DELAY RANGING FROM 232 DAYS TO 416 DAYS WHICH RESULTED IN TO IMPOSITION OF PENALTY OF RS.97,200/- U/S 272A(2)(K) VIDE ASSESSING OFFICER [ AO] ORDER DATED 21/06/2013. THE SAME WAS ASSAILED BEFORE LD. FIRST APPELLATE AUTHORI TY WITH PARTIAL SUCCESS VIDE ORDER DATED 04/03/2016. THE ASSESSEE PLEADED FOR DELETION OF PENALTY ON THE GROUND THAT THE ASSESSEE WAS INDIVIDUAL CARRYING ON THE BUSINESS OF TRANSPORT IN THE UNORGANIZED SECTOR AND WAS NOT FULLY CONVERSANT WITH THE COMPLEX TDS P ROVISIONS, WHICH RESULTED INTO DELAY IN FILING OF TDS RETURNS. FURTHER, THERE WAS DELAY I N TDS PAYMENT BY THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT FILE THE TDS RETUR NS BEFORE DEPOSIT OF TDS WITH THE REVENUE. THE LD. CIT(A) PARTIALLY ACCEPTING THE CON TENTIONS OF THE ASSESSEE REDUCED THE PENALTY TO RS.67,500/- AFTER APPRECIATING THE DATE OF ACTUAL PAYMENT OF TDS BY THE ASSESSEE AND DATE OF FILING OF QUARTERLY TDS RETURN S. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NOS.4206 & 4207/M/2016 GULAM MUSTAFA KHAN ASSESSMENT YEARS 2009-10 & 2010-11 3 3. THE LD. COUNSEL FOR ASSESSEE [AR] RAISING SIMILAR CONTENTIONS PLEADED THAT THE ASSESSEE WAS AN INDIVIDUAL TRANSPORT OPERATOR WORKI NG IN THE UNORGANIZED SECTOR AND WAS NOT FULLY CONVERSANT WITH THE COMPLEX TDS PROVISIONS AND COMPLIANCES THEREOF. HE WAS FULLY DEPENDENT UPON THE TAX CONSULTANT TO COMPLY W ITH THESE TDS PROVISIONS AND DEDUCTED / DEPOSITED TDS AS PER THE INSTRUCTIONS OF THE CONSULTANTS FROM TIME TO TIME AND THEREFORE THERE WAS NO DELIBERATE DEFAULT ON THE PA RT OF THE ASSESSEE SO AS TO ATTRACT THE PENALTY. FURTHER, IT TOOK SOME TIME FOR THE ASSESSE E TO CONVINCE THE PETTY TRANSPORTERS ABOUT TDS PROVISIONS. MOREOVER, THE ASSESSEE DEPOSI TED THE DUE TDS ALONG-WITH APPLICABLE INTEREST, WHICH DO NOT JUSTIFY THE PENAL TY. RELIANCE WAS PLACED ON THE ORDER OF RAJKOT TRIBUNAL (SMC) IN BHARAT KUMAR MANILAL VS. JCIT [121 TAXMAN 361ORDER D ATED 1/11/2001]. PER CONTRA, LD. DR, DR. ANUPAMA SINGLA, DREW OUR ATTENTION TO THE EXPRESS PENAL PROVISIONS AS CONTAINED IN SECTION 272A TO CO NTEND THAT THE LATE FILING OF TDS RETURNS WOULD CERTAINLY ENTAIL IMPOSITION OF PENALT Y AT PRESCRIBED RATES. FURTHER, THE ASSESSEE INCURRED THE SAME DEFAULT OVER SEVERAL YEA RS, WHICH DO NOT JUSTIFY DELETION OF PENALTY. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD WHICH PRIMA FACIE REVEALS THAT THE ASSESSEE HAS DEPOSITED THE TDS WITH INTEREST AS APPLICABLE FROM TIME TO TIME. WE FIND SOME STRENGTH IN THE ARGUMENTS OF THE LD. AR THAT ASSESSEE WAS AN INDIVIDUAL WORKING IN THE UNORGANIZ ED SECTOR AND THEREFORE, NOT FULLY CONVERSANT WITH THE COMPLEX TDS PROVISIONS AND HAD TO DEPEND UPON SOME EXPERTS TO COMPLY WITH THESE PROVISIONS AS TDS PROVISIONS CERT AINLY REQUIRE CERTAIN HIGHER DEGREE OF UNDERSTANDING OF TDS PROVISIONS AND MANNER OF CO MPLIANCES THEREOF. WE ALSO NOTE THE FACT THAT THE TDS COMPLIANCES HAVE UNDERGONE FRE QUENT CHANGES OVER THE LAST DECADE IN TERMS OF DEDUCTION, DEPOSIT, E-FILING OF TDS RET URNS AND GENERATION OF TDS CERTIFICATES ETC. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO TH E ISSUE ON MERIT, WE ARE INCLINED TO DELETE THE SAID PENALTY ON THE FACTS AND CIRCUMSTAN CES OF THE CASE AND ACCORDINGLY, ALLOW ASSESSEES APPEAL. ITA NOS.4206 & 4207/M/2016 GULAM MUSTAFA KHAN ASSESSMENT YEARS 2009-10 & 2010-11 4 5. NOW WE TAKE UP ITA NO.4207/M/2016 FOR AY 2010-11 WHERE THE ASSESSEE IS SADDLED WITH A PENALTY OF RS. 58,200/- IN SIMILAR M ANNER FOR LATE FILING OF QUARTERLY TDS RETURN FOR ALL QUARTERS OF IMPUGNED AY AND THE SAME HAS BEEN ASSAILED BEFORE US. THERE BEING NO CHANGE IN THE FACTS AND CIRCUMSTANCES EXCE PT FOR DATES / FIGURES AND MINOR VARIATIONS, TAKING THE SAME STAND, WE DELETE THE IM PUGNED PENALTY AND ALLOW ASSESSEES APPEAL. 6. IN NUTSHELL, BOTH APPEALS FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH APRIL, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; 1 DATED : 12.04.2017 SR.PS:- THIRUMALESH ' #$%& '&$ / COPY OF THE ORDER FORWARDED TO : 1. !%& / THE APPELLANT 2. '( %& / THE RESPONDENT 3. 2, ( ! ) / THE CIT(A) 4. 2, / CIT CONCERNED 5. 56 ' , 78 , ! 78/ , / DR, ITAT, MUMBAI 6. 9 : / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI