JAIPUR DARBAR HOTEL PVT. LTD., Jaipur V. ITO, Jaipur

ITA 440/JPR/2015

• Counselvise Citation: 44023114 RSA 2015
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA CIT DHK
• Assessee Lawyers: RAJEEV SOGANI
• Keywords: Bonafide belief

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH IH-DS-CALY] YS[KK LNL; DS LE{K BEFORE: SHRI P.K. BANSAL, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 440/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. JAIPUR DARBAR HOTEL PVT. LTD., 44, GULESTAN SAMIN, NEAR GOLIMAR GARDEN, AMER ROAD, JAIPUR. CUKE VS. THE INCOME - TAX OFFICER, TDS-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR/TAN NO.: JPRJO 0652 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI, C.A. JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATEJA, ADDL. CIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 6/11/2015 VKNS'K@ ORDER PER P.K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT (A) DATED 23.02.2015 BY WHICH THE LD. CIT (A) SUSTAINED THE P ENALTY TO THE EXTENT OF RS. 89,815/- IMPOSED BY THE AO UNDER SECTION 272A(2)(K) OF THE I T ACT. 2. I HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONS IDERED THE SAME ALONG WITH THE ORDERS OF TAX AUTHORITIES BELOW. I NOTED THAT IN T HIS CASE THE ASSESSEE HAS SUBMITTED AN EXPLANATION THAT EVEN THE TAX DEDUCTED HAS DULY BEE N PAID BUT THE ASSESSEE COMPANY WAS UNDER THE BONAFIDE BELIEF THAT THE RETURN HAS B EEN FILED BY M/S. R.A. SHARMA & CO., 2 ITA NO. 440/JP/2015 JAIPUR DARBAR HOTEL P. LTD. CHARTERED ACCOUNTANTS, JAIPUR WHO HAS BEEN ENGAGED BY THE ASSESSEE FOR FILING ITS TDS RETURN. BUT THE AUDITOR SINCE DID NOT FILE, THE ASS ESSEE COMPANY HAS TO APPOINT ANOTHER AUDITOR M/S. P.C. MODI & CO. IN ITS EXTRA ORDINARY G ENERAL MEETING HELD ON 29 TH MAY, 2009 AND THE NEW AUDITOR TOOK THE CHARGE AND THEN W HEN HE CAME TO KNOW THAT THE TDS RETURN HAS NOT BEEN FILED, IMMEDIATELY HE FILED THE TDS RETURN ON 29 TH JUNE, 2010. IN MY OPINION, THE EXPLANATION GIVEN BY THE ASSESSE E BONAFIDE ONE AND IN VIEW OF PROVISIONS OF SECTION 273B, IF THE ASSESSEE HAS A R EASONABLE CAUSE TO FILE THE RETURN WITHIN THE SPECIFIED TIME, THE PENALTY CANNOT BE IM POSED. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. S.E., PWD, UDAIPUR (200 3) 260 ITR 641 (RAJ.) HAS ALSO TAKEN A VIEW THAT PENALTY UNDER SECTION 272A(2)(C) FOR FAILURE TO FURNISH A RETURN OF TAX DEDUCTED AT SOURCE WITHIN SPECIFIED TIME, CANNOT BE LEVIED IN A ROUTINE MANNER AND THE DISCRETION SHOULD BE EXERCISED JUDICIALLY CONSIDERA TION OF RELEVANT CIRCUMSTANCES. I AM OF THE VIEW THAT FOR THE MISTAKE OF THE COUNSEL OF THE ASSESSEE, THE ASSESSEE CANNOT BE HELD RESPONSIBLE. I ACCORDINGLY DELETE THE PENALTY SUSTAINED BY THE LD. CIT (A) AT RS. 89,815/-. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6/11/2015 . SD/- IH-DS-CALY ( P.K. BANSAL ) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 6/11/ 2015 DAS/ 3 ITA NO. 440/JP/2015 JAIPUR DARBAR HOTEL P. LTD. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. JAIPUR DARBAR HOTEL PVT. LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO TDS-2, JAIPUR. 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 440/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR