THE REVDANDA CO-OPERATIVE URBAN BANK LIMITED , MUMBAI V. ADDITIONAL COMMISSIONER OF INCOME TAX, TDS RANGE, THANE, THANE

ITA 4724/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6575 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 201; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI G. MANJUNATHA, AM / I.T.A. NO. 4724 / MUM/ 2017 ( / ASSESSMENT YEARS: 20 1 1 - 12 ) THE REVDANDA CO - OPERATIVE URBAN BANK LIMITED AT POST REVDAND A, TALUKA ALIBAUG, ALIBAUG - 402202 / VS. ADDITIONAL COMMISSIONER OF INCOME TAX, TDS RANGE , THANE 6 TH FLOOR, ASHAR IT PARK THANE, THANE - 400604 ./ ./ PAN/GIR NO. : AAAJT 0606 R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 1 7 .01.2019 /DATE OF PRONOUNCEMENT: 20 . 02 .2019 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 01.05.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 11 - 12 IN WHICH THE PENALTY LEVIED BY THE ASSESSING OFFICER HAS BEEN ORDERED TO BE CONFIRMED . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF A.O. OF LEVYING PENALTY FOR LATE FILING OF TDS RETURN U/S.272A (2)(K) TO THE TUNE OF RS.59,715/ - THE DETAILS OF WHICH ARE AS FOLLOWS; PENALTY FOR QUARTER 1: - RS.22,302/ - PENALTY FOR QUARTER 2: - RS.37,413/ - THE SAID PENALTY MAY PLEASE BE DELETED. 2. THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF A.O. OF LEVYING P ENALTY FOR LATE FILING OF RETURN DISREGARDING THE FACT THAT THE APPELLANT HAD NOT MADE ANY DEFAULT IN DEDUCTING THE TAX ON VARIOUS PAYMENTS MADE AND ALSO IN THE PAYMENT THEREOF TO THE GOVERNMENT TREASURY. ASSESSEE BY : SHRI DEVENDRA JAIN REVENUE BY: SHRI MANOJ KUMAR SINGH ITA NO. 4724 /M/2017 A. Y. 201 1 - 12 2 3. THE CIT(A) HAS ERRED IN RETAINING THE PENALTY L EVIED BY THE A.O. TO FULL EXTENT DISREGARDING THE REQUEST OF THE APPELLANT TO RESTRICT THE SAME TO THE EXTENT OF RS.100/ - PER DAY ONLY FOR 1 ST QUARTER AND TO DELETE THE PENALTY FOR OTHER THREE QUARTERS OF THE YEAR. 3. THE BRIEF FACTS OF THE CASE ARE THA T THE ASSESSEE IS A HAVING TAN PNET05334A WAS ASSESSED WITH ITO, TDS, PANVEL. THE ASSESSEE HAS FILED QUARTERLY STATEMENT OF TDS U/S.200(3) IN VIEW OF RULE 31A OF THE IT RULES, 1962 AS UNDER: - SR. NO . FORM NO. QRTR F.Y. RRR NO. DUE DATE DATE OF FILING DELAY TAX AMOUNT DEDUCTED (IN RS.) MAX. PENALTY LEVIABLE (IN RS.) 1. 26Q Q1 2010 - 11 61280200158472 15 - 07 - 10 08 - 12 - 11 511 22302 22302 2. 26Q Q2 2010 - 11 61280200158483 15 - 10 - 10 08 - 12 - 11 419 37413 37413 TOTAL 59715 THE ASSESSEE HAS FILED THE QUARTERLY STATEM ENT LATE. THE AO INITIATED THE PENALTY PROCEEDING. THE NOTICE U/S.272A(2)(K) / 274 R.W.S.200(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WAS ISSUED ON 11.09 .2012 BUT NO REPLY WAS RECEIVED , THEREFORE, THE AO LEVIED THE PENALTY IN SUM OF RS.59,715 / - FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE PENALTY, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEARNED REPRESENTATIVE OF THE PARTIES AND PERU SED THE RECORD. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE DEDUCTED THE TAX WELL IN TIME AND ALSO DEPOSITED THE TAX IN TIME. THE ASSESSEE WAS RESIDING IN REMOTE AREA, ITA NO. 4724 /M/2017 A. Y. 201 1 - 12 3 THEREFORE , FAILED TO FILE THE RETURN WELL IN TIME. IT IS ALSO ARGUED THAT THE LATE FILING RETURN IS NOT A DEFAULT, THEREFORE, NO PENALTY IS LEVIABLE I N VIEW OF THE DECISION OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITA NO.2916 TO 2918/MUM/2016 FOR A.Y.2010 - 11 DATED 11.05.2018 TITLED AS SHRI RAVIRAJ REL EMP ADDU VS. DCIT 23(1) AND THE DECISION OF THE HONBLE ITAT, JAIPUR IN CASE OF RAJASTHAN TRIBAL AREA DEVELOPMENT CO - OPERATIVE FEDERATION LTD. VS. ITO (60 TTJ 427 JP TRIB) AND ON THE BASIS OF THE DECISION OF ITAT, LUCKNOW BENCH IN CASE TITLED AS BRANCH MANAGER , PUNJAB NATIONAL BANK VS. ADDL. CIT (2011) 140 TTJ 622/16 TAXMAN.COM. HOWEVER, ON THE OTHER HAND, THE LEARNED REPRESENTATIVE OF THE DEPARTMENT HAS STRONGLY RELIED UPON THE DECISION OF THE LEARNED CIT(A) IN QUES TION. ON APPRAISAL OF THE FILE, WE NOTICED THAT THE ASSESSEE DEDUCTED THE TAX AND ALSO DEPOSITED THE TAX WELL IN TIME. UNDISPUTEDLY, THE ASSESSEE FILLED THE RETURN DELAYED IN THE A.Y.2010 - 11. THE ASSESSEE FILED THE RETURN DELAYED OF THE FIRST QUARTER BY 419 DAYS. NON FILING OF THE TDS RETURN IS A TECHNICAL DEFAULT AND VENIAL IN NATURE. MOREOVER, THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITA NO.2916 TO 2918/MUM/2016 FOR A.Y.2010 - 11 DATED 11.05.2018 TITLED AS SHRI RAVIRAJ RELEMPADDU VS. DCIT 23( 1) AND THE DECISION OF THE ITAT, JAIPUR IN CASE OF RAJASTHAN TRIBAL AREA DEVELOPMENT CO - OPERATIVE FEDERATION LTD. VS. ITO (60 TTJ 427 JP TRIB) AND ON THE BASIS OF THE DECISION OF ITAT, LUCKNOW BENCH IN CASE TITLED AS BRANCH MANAGER, PUNJAB NATIONAL BANK VS . ADDL. CIT (2011) 140 TTJ ITA NO. 4724 /M/2017 A. Y. 201 1 - 12 4 622/16 TAXMAN.COM. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ARK CORPORATION (2008) 172 TAXMANN.COM 339 (DEL) HAS HELD THAT THE NO PENALTY IS LEVIABLE ON ACCOUNT OF SUCH TYPE OF TECHNICAL DEFAULT. THE FACT OF THE PRESEN T CASE IS QUITE SIMILAR TO THE FACT OF THE CASE MENTIONED ABOVE. 5. IN VIEW OF THE DECISION OF THE HONBLE ITAT (SUPRA) IN THE ABOVE MENTIONED CASES AS WELL AS IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT (SUPRA) IN WHICH THE FACTS AND CIRCUMSTANCE S ARE QUITE SIMILAR TO THE PRESENT CASE, THEREFORE, WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, THEREFORE, WE SET ASIDE THE SAME AND DELETE THE PENALTY. 6 . IN THE RESULT, THE APPEA L OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20. 0 2 .2019 . SD/ - ( G. MANJUNATHA ) SD/ - (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 20. 0 2 .2019 MP 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//