ACIT (TDS), JODHPUR V. M/s. Sub Divisional Officer, ABU ROAD

ITA 472/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5225 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 12-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 472 / JODH /201 5 (ASST. YEAR : 20 1 0 - 11 ) ACIT (TDS) , JODHPUR . VS. M/S. SUB - DIVISIONAL OFFICER, MOUNT ABU, TEHSIL ABU ROAD, ABU ROAD . PAN NO. ADHS 0578 G (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : S HRI S. L . MOURYA - DR DATE OF HEARING : 1 4 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 4 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 , JODHPUR , DATED 07 /0 8 /201 5. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE PENALTY OF RS. 12,25,154/ - UNDER SEC. 271 C OF THE ACT FOR LATE DEPOSIT OF TDS TO GOVERNMENT ACCOUNT. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS GOVERNMENT AUTHORITY. IT FILED THE QUARTERLY STATEMENT OF TDS FOR 4 TH QUARTER IN RESPECT OF FINANCIAL YEAR 2009 - 10 IN FORM NO.26Q . THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS FAILED TO PAY THE AMOUNT OF TDS 2 ITA NO. 47 2 / JODH /201 5 DEDUCTED TO THE ACCOUNT OF CENTRAL GOVERNMENT WITHIN THE STIPULATED TIME . THEREFORE, ASSESSING OFFICER IMPOSED PENALTY UNDER SEC. 271C FOR RS. 12,25,154/ - . 4 . ON APPEAL , COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE PENALTY BY OBSERVING THAT SEC. 271C IS ATTRACTED ONLY WHEN PERSON FAILS TO DEDUCT TAX AT SOURCE OR PAY THE WHOLE OR ANY PART OF THE TAX. IT IS CLEAR FROM THE HEADING ITSELF THAT IT IS NOT ATTRACTED IN THE CASE OF LATE DEPOSIT OF TDS . PROVISIONS OF CHAPTER XVII - B ARE REFERRED IN THE CONTEXT OF NON - DEDUCTION OF T DS AND NOT FOR LATE PAYMENT OF TDS. I N SUB - SEC.(1) THERE ARE NO WORDS REGARDING ANY DEFAULT OF CHAPTER XVII - B IN RELATION TO LATE DEPOSIT OF TDS, HERE IT IS SPECIFICALLY RELATED TO NON - DEDUCTION OF TDS , WHICH IS NOT THE CASE OF ASSESSEE. HENCE, PENALTY IS NOT ATTRACTED AT ALL IN THE CASE OF THE ASSESSEE. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVED THAT THE ASSESSEE HAD ADDUCED SUFFICIENT REASONS AS TO WHY PENALTY SHOULD NOT BE IMPOSED. IN THE INSTANT CASE, LATE DEPOSIT OF TDS WAS ONLY DUE TO THE CAUSE THAT THE CHEQUE BEARING NO. 001885 DATED 15/03/2010 SIGNED BY THE SDM, MOUNT ABU (ASSESSEE) WAS LOST IN TRANSIT AND THE ASSESSEE WAS UNDER THE IMPRESSION THAT CHALLAN AND CHEQUE WERE DEPOSITED BY HIM . W HEN TH E ASSESSEE CAME TO KNOW THAT SAID CHEQUE WAS NOT YET CLEARED FROM BANK AFTER A PERIOD OF THREE MONTHS, HE MADE ANOTHER CHEQUE NO. 001888 DATED 27/12/2010 FOR THE SAME AMOUNT AND SENT IT TO THE CONCERNING OFFICER FOR SIGNING THE SAME AND THE SAME WAS DEPOSI TED IN THE BANK. THUS, THERE APPEARS TO BE NO MALAFIDE INTENTION ON THE PART OF THE ASSESSEE. FURTHER, COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT ON A SIMILAR ISSUE BENCH A OF THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF BOARD OF SECONDARY EDUCATION, AJMER , 50 TAX WORLD 30 (JP) HELD THAT WHERE THE ASSESSEE PAID TDS AMOUNT BELATEDLY TOGETHER WITH INTEREST TO THE ACCOUNT OF THE CENTRAL 3 ITA NO. 47 2 / JODH /201 5 GOVERNMENT ACCOUNT, THEN NO PENALTY UNDER SEC. 271C WAS LEVIABLE ON THE ASSESSEE. 6 . DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER, WHEREAS NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE BEING ISSUED TO THE ASSESSEE. 7. WE FIND THAT THE DEPARTMENTAL REPRESENTATIVE MERELY RELIED ON THE ORDER OF THE AS SESSING OFFICER, HE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO CONTROVERT THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS) THAT THE CHEQUE ISSUED FOR TDS WAS LOST IN TRANSIT AND THE ASSESSEE LATER ON ISSUED ANOTHER CHEQUE AND SENT IT TO THE CONCERNIN G AUTHORITY AND, THEREFORE, THERE WAS A REASONABLE CAUSE FOR THE ASSESSEE TO DEPOSIT THE TDS BELATEDLY. THERE WAS NO MALAFIDE INTENTION OF THE ASSESSEE FOR DEPOSITING TDS BELATEDLY. IN ABSENCE OF THE ASSESSEE, WE FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON MONDAY , THE 1 4 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 4 TH MARCH , 201 6 . VR/ - 4 ITA NO. 47 2 / JODH /201 5 COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER