M/S GURUASHISH CONSTRUCTION PVT LTD., Mumbai V. JOINT CIT TDS 1(2), Mumbai

ITA 4503/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3443 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 03-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Reasonable cause; TDS
• Section: 273B; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , G BENCH MUMBAI BEFORE : SHRI MAHAVIR SINGH, VICE PRESIDENT & SHRI M.BALAGANESH, A CCOUNTANT M EMBER ITA NO. 4503 /MUM/ 20 19 ( ASSESSMENT YEAR : 2012 - 13 ) M/S. GURUSHISH CONSTRUCTION PVT. LTD., 3 RD FLO OR, HDIL TOWERS ANANT KANEKAR MARG BANDRA (E) MUMBAI 400 051 VS. JOINT COMMISSIONER OF INCOME TAX TDS - 1(2), MUMBAI 6 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL CHARNI ROAD MUMBAI 400 002 PAN/GIR NO. AABCG4633R (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY NONE REVENUE BY SHRI T.S.KHALSA DATE OF HEARING 07 / 06 /202 1 DATE OF PRONOUNCEMENT 11 / 06 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 4503/MUM/2019 FOR A.Y. 2012 - 13 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 59, MUMBAI IN APPEAL NO. CIT(A) - 59/IT - 65/2016 - 17 DATED 25/04/2019 (LD. CIT(A) IN SHORT) IN THE MATTER OF IMPOSITION OF PENALTY U/S. 272A(2)(K) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS ACT). ITA NO . 4503/MUM/2019 M/S. GURUASHISH CONSTRUCTION PVT. LTD., 2 2. THE ONLY EFF ECTIVE ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY IN THE SUM OF RS.500,700/ - U/S. 272A(2)(K) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. 3. NONE APPEARED ON BEHALF O F THE ASSESSEE. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN THIS CASE, THE LD. AO OBSERVED THAT ASSESSEE HAD FAILED TO FILE TDS STATEMENTS AS REQUIRED U/S.200(3) OF THE ACT WITHIN THE PRESCRIBED TIME. THE DELAY IN FI LING THE STATEMENTS ARE AS UNDER: - SR. NO. QUARTER TYPE DUE DATE OF FILING ACTUAL DATE OF FILING DELAY IN NUMBER OF DAYS 1 26Q OTHER THAN SALARY 15/07/2011 09/01/2015 1273 2 26Q OTHER THAN SALARY 15/10/2011 04/04/2015 1176 3 26Q OTHER THAN SALARY 15/01 /2012 28/05/2015 1228 4 26Q OTHER THAN SALARY 15/05/2012 05/01/2016 1330 TOTAL 5007 3.1. FOR THE AFORESAID DELAY, THE LD. AO PROCEEDED TO LEVY PENALTY @100/ - PER DAY IN TERMS OF SECTION 272A(2)(K) OF THE ACT AND ACCORDINGLY, ARRIVED AT THE PENALTY AMOUNT OF RS.500,700/ - . THIS LEVY OF PENALTY WAS UPHELD BY THE LD. CIT(A) ON THE GROUND THAT ASSESSEE HAD NOT OFFERED ANY REASONABLE CAUSE FOR DELAY IN FILING OF TDS STATEMENTS U/S. 2 0 0(3) OF THE ACT. 3.2. WE FIND THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. A SURVEY ACTION U/S.133A OF THE ACT WAS CONDUCTED IN ITS PREMISES ON 10/02/2014, PURSUANT TO WHICH, THE TDS DEFAULTS TO THE TUNE ITA NO . 4503/MUM/2019 M/S. GURUASHISH CONSTRUCTION PVT. LTD., 3 OF RS.2,31,71,365/ - WAS DE TECTED LEADING TO THE COMMENCEMENT OF PROCEEDINGS U/S.201(1) / 201(1A) OF THE ACT. THE ASSESSEE HAD SUBMITTED THAT IT HAD NOT CLAIMED ANY TAX DEDUCTION OF EXPENDITURE O N WHICH TDS DEFAULT HAD OCCURRED. IT HAD ALSO SUBMITTED THAT THE MAJORITY OF SAID DEFAULT RELATED TO INTEREST PAYMENTS MADE TO AN ENTITY IDENTIFIED AS IL & FS WH ICH HAD ALREADY ACCOUNTED FOR THE SAID INTEREST RECEIPTS IN ITS RETURN. THE ASSESSEE ALSO STATED THAT IT HAD PAID THE BALANCE AMOUNT OF TAX IN DEFAULT AMOUNTING TO RS.70,27,550/ - PRIOR TO THE DATE OF COMMENCEMENT OF THE PRESENT PENALTY PROCEEDINGS. THE ASS ESSEE SUBMITTED THAT SINCE THE TAX DEDUCTED WAS NOT PAID IN TIME, THE TDS STATEMENTS COULD NOT BE FILED ELECTRONICALLY . ACCORDING TO ASSESSEE, THE SAME CONSTITUTED REASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B OF THE ACT AND HENCE THERE CANNOT BE ANY LEVY OF PENALTY U/S. 272A(2)(K) ON IT. ADMITTEDLY, WE FIND THAT ASSESSEE HAD DULY DEDUCTED THE TAX AT SOURCE AND HAD ALSO REMITTED THE SAME , OF COURSE WITH SOME DELAY, FOR WHICH IT HAD ALREADY BEEN PENALISED WITH INTEREST AS PER THE ACT . THE INTEREST U/S. 201(1A) OF THE ACT HAD ALSO BEEN PAID BY THE ASSESSEE. ADMITTEDLY, THE ASSESSEE HAD INDEED FILED ITS TDS STATEMENTS U/S.200(3) OF THE ACT BEYOND PRESCRIBED TIME. BUT WE FIND THAT THERE IS ABSOLUTELY NO LOSS TO THE EXCHEQUER PURSUANT TO THE SAID DELAY AS T HE ENTIRE TAXES THAT WERE DUE TO THE GOVERNMENT HAD ALREADY BEEN DULY REMITTED BY THE ASSESSEE. HENCE, THE DEFAULT COMMITTED BY THE ASSESSEE IS ONLY A MINOR TECHNICAL AND VENIAL BREACH. IT IS SETTLED LAW THAT NO PENALTY COULD BE LEVIED ON AN ASSESSEE FOR A MERE TECHNICAL VENIAL BREACH, MORE ESPECIALLY WHEN THERE IS NO LOSS CAUSE D TO THE EXCHEQUER DUE TO SUCH BREACH. 3.3. IN VIEW OF THE SAME, WE HAVE NO HESITATION IN DIRECTING THE LD. AO TO DELETE THE PENALTY LEVIED U/S. 272A(2)(K) IN THE FACTS AND CIRCUMST ANCES ITA NO . 4503/MUM/2019 M/S. GURUASHISH CONSTRUCTION PVT. LTD., 4 OF THE INSTANT CASE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 11 / 06 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( MAHAVIR SIN GH ) SD/ - (M.BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 11 / 06 / 2021 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//