The Sub Divisional Agricultural Officer, Shajapur V. The CIT (OSD) (TDS), Indore

ITA 452/IND/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1519 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MITESH KOTHARI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : BPLSO8840G I.T.A.NO S . 452 & 453/IND/2012 A.Y S . : 2008 - 09 & 2011 - 12 THE SUB DIVISIONAL AGRICULTURAL OFFICER, COMMISSI ONER OF INCOME TAX TAX (OSD)(TDS), SHAJAPUR VS INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI MITESH KOTHARI, C. A. RESPONDENT BY : SHRI R. A. VERMA, SR. DR DATE OF HEARING : 29 . 01 .201 3 DATE OF PRONOUNCEMENT : . 01 .201 3 O R D E R PER R. C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(OSD)(TDS), INDORE, DATED 31.05.2012, F OR THE ASSESSMENT YEARS 2008-09 AND 2011-12., IN THE MATTE R OF IMPOSITION OF PENALTY U/S 272A(2)(K) OF THE INCOME- TAX ACT, 1961. -: 2: - 2 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THE ASSESSEE IS A GOVERNMENT DEPARTMENT EN GAGED IN PROMOTING VARIOUS FACILITIES AND SERVICES TO THE AGRICULTURISTS. THE ASSESSEE WAS REQUIRED TO FILE Q UARTERLY STATEMENT OF DEDUCTION AT SOURCE UNDER THE PROVISIO NS OF SECTION 200(3). AS THERE WAS A DELAY IN FILING THIS RETURN, THE CIT(OSD)(TDS) IMPOSED PENALTY U/S 272A(2)(K) OF THE INCOME- TAX ACT, 1961. 3. SHRI MITESH KOTHARI, CA APPEARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT THERE WAS REASONABLE CA USE FOR DELAY IN FILING TDS RETURN, THEREFORE, NO PENALTY S HOULD BE IMPOSED. RELIANCE WAS PLACED BY THE LD. AUTHORIZED REPRESENTATIVE ON THE FOLLOWING DECISIONS :- 1. M/S. AMCON ENGINEERS ( P) LTD VS INCOME TAX OFFI CER (ITA NOS. 2253 & 2254/DEL/11 ) 2. THE MANAGER,UNION BANK OF INDIA VS ADDITIONAL COMMISSIONER OF INCOME TAX (ITA 122(AGRA). 3. COLLECTOR,LAND ACQUISITION VS ADDITIONAL COMMISSIONER OF INCOME TAX ,(2012-ITS-997-ITAT) -: 3: - 3 4. THE ORIENTAL INSURANCE COMPANY VS DEPARTMENT OF INCOME TAX (ITA NO.2906/ AHD/2009 ) 5. LOK PRAKASHAN LTD VS DEPARTMENT OF INCOME TAX ( IT A NO.2815 I AHD/ 2009). 6. CREST COMMUNICATION LTD VS ADDITIONAL DIRECTOR O F INCOME TAX (INTERNATIONAL TAXATION 4. ON THE OTHER HAND, THE LD. SR.DR SUPPORTED THE ORDE R OF CIT IN SO FAR AS THERE WAS ACTUAL DELAY IN FILIN G TDS RETURN. IT WAS CONTENDED THAT MINIMUM PENALTY SO IMPOSED SH OULD BE SUSTAINED. 5. FROM THE RECORD, WE FOUND THAT THE ASSESSEE HAS DUL Y DEDUCTED TAX AT SOURCE AND ALSO DEPOSITED THE SAME WITHIN TIME UNDER THE ACT. HOWEVER, ASSESSEE COULD NOT FIL E TDS RETURN IN TIME, BECAUSE GOVERNMENT HAS ISSUED GUIDE LINES THAT FOR SUBMISSION OF E-TDS RETURN MINIMUM 95% PAN IN RESPECT OF EMPLOYEES WHOSE TDS HAS BEEN DEDUCTED IS REQUIRED TO BE MENTIONED IN THE RETURN. HOWEVER, DU E TO NON AVAILABILITY OF PAN OF EMPLOYEES, RETURN COULD NOT BE FILED WITHIN STIPULATED TIME AS THERE WAS ALSO COMMUNICAT ION GAP DUE TO CHANGE IN EMPLOYEES ON ACCOUNT OF REGULAR TR ANSFER OF -: 4: - 4 NEW EMPLOYEES AND DEPARTMENT UNAWARE OF THE FACT TH AT THE RETURN WAS FILED. WE FOUND THAT AS SOON AS THE ASSE SSEE BECAME AWARE OF THE FACT THAT RETURN WAS NOT FILED, THE ASSESSEE IMMEDIATELY ARRANGED THE PAN OF EMPLOYEES AND RETURNS WERE FILED. HOWEVER, DELAY IN FILING OF TDS DID NOT RESULT IN ANY LOSS OF REVENUE TO THE GOVERNMENT AS TAX SO DEDUCTED WAS DEPOSITED IN TIME. HON'BLE SUPREME COU RT IN THE CASE OF HINDUSTAN STEEL, 83 ITR 27, HAS OBSERVED AS UNDER :- THAT IN ORDER TO IMPOSE PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF QUASI CRIMINAL PROCEEDINGS AND PENALTY WILL NOT ORDINARILY BE IMPOSED, UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. THE SUPREME COURT HAS FURTHER LAID DOWN THAT PENALTY WILL NOT BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE -: 5: - 5 IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY AND IS TO BE EXERCISED JUDICIOUSLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY, WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. 6. AS THERE WAS REASONABLE CAUSE FOR DELAY IN FILING THE RETURN, THE CASE IS COVERED BY THE PROVISIONS OF SE CTION 273B, ACCORDING TO WHICH PENALTY CANNOT BE LEVIED, WHEN T HERE IS A REASONABLE CAUSE FOR SUCH DEFAULT. ACCORDINGLY, WE CANCEL THE PENALTY IN BOTH THE YEARS UNDER CONSIDERATION. -: 6: - 6 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2013. SD/ - SD/ - (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST JANUARY, 2013. CPU* 2930