ITO (TDS), Rohtak V. The Executive Engineer, Jhajjar

ITA 495/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91137 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 15-06-2015
• Assessment Year: misc
• Appeal Filed On: 28-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NOS.492 TO 495/DEL/2014 ASSESSMENT YEAR : 2010-11 ITO (TDS), ROHTAK. VS. THE EXECUTIVE ENGINEER, PROVISIONAL DIVISION, PUBLIC HEALTH, BAAG JAWAHRA, JHAJJAR. PAN: RTKE00639C (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI AMRIT LAL, JCIT DATE OF HEARING : 15.06.2015 DATE OF PRONOUNCEMENT : 15.06.2015 ORDER THESE FOUR APPEALS BY THE REVENUE ARISE OUT OF A C OMMON ORDER PASSED BY THE CIT (A) ON 6.12.2013 DELETING THE PEN ALTY IMPOSED U/S ITA NOS.492 TO 495/DEL/2014 2 272B OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT) IN RELATION TO THE FINANCIAL YEAR 2009-10. 2. BRIEFLY STATED, THE FACTS OF THE APPEAL NO. 492/ D/2014 ARE THAT THE ASSESSEE FILED QUARTERLY E-TDS QUARTERLY STATEMENT OF DEDUCTION OF TAX IN FORM NO.26Q FOR THE FIRST QUARTER OF THE FINANCIAL YEAR 2009-10. ON PROCESSING OF THE AFORESAID RETURN, IT WAS OBSERVED THAT PANS OF AS MANY AS 56 TAX-DEDUCTEES WERE INVALID AND THE ASSESSEE D EDUCTOR DID NOT SUBMIT CORRECT PANS IN RESPECT THEREOF. ON BEING S HOW CAUSED AS TO WHY PENALTY U/S 272B OF THE ACT BE NOT IMPOSED, THE ASSESSEE FURNISHED ITS REPLY DATED 9.1.2012 SUBMITTING THE COPIES OF C ORRECTION RETURNS DULY STATING PANS OF A FEW TAX DEDUCTEES WHICH WERE NOT EARLIER AVAILABLE. THE AO INVOKED THE PROVISIONS OF SECTION 139(5B) AN D IMPOSED PENALTY @ RS.10,000/- PER BREACH AMOUNTING IN TOTAL TO RS.5 ,60,000/- FOR THE FIRST QUARTER OF THE YEAR. SIMILAR IS THE POSITION FOR THE REMAINING THREE QUARTERS FOR WHICH THE AO IMPOSED PENALTY AT RS.9,4 0,000/-, RS.8,16,000/- AND RS.8 LAC. THE ASSESSEE PREFERRED APPEALS AGAINST THE ORDERS PASSED BY THE AO U/S 272B OF THE ACT. THE L D. CIT(A) CONCURRED ITA NOS.492 TO 495/DEL/2014 3 WITH THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSE SSEE AND ORDERED FOR THE DELETION OF PENALTY IMPOSED FOR FOUR DIFFERENT QUARTERS OF THE FINANCIAL YEAR 2009-10. THE REVENUE IS AGGRIEVED A GAINST THE DELETION OF SUCH PENALTY. 3. I HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. AS SUCH, I AM PROCEEDING TO DISPOSE OF THE SE APPEALS EX PARTE QUA THE ASSESSEE. 4. IT IS OBSERVED THAT THE AO IMPOSED PENALTY U/S 2 72B FOR VIOLATION OF THE PROVISIONS OF SECTION 139(5B), WHICH READ AS UNDER:- 139A. (5B) WHERE ANY SUM OR INCOME OR AMOUNT HAS BEEN PAI D AFTER DEDUCTING TAX UNDER CHAPTER XVIIB, EVERY PERSON DEDUCTING TAX UNDER THAT CHAPTER SHALL QUOTE THE PERMANENT ACCOUNT NUMBER OF THE PER SON TO WHOM SUCH SUM OR INCOME OR AMOUNT HAS BEEN PAID BY HIM (I) IN THE STATEMENT FURNISHED IN ACCORDANCE WIT H THE PROVISIONS OF SUB-SECTION (2C) OF SECTION 192; (II) IN ALL CERTIFICATES FURNISHED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 203; ITA NOS.492 TO 495/DEL/2014 4 (III) IN ALL RETURNS PREPARED AND DELIVERED OR CAU SED TO BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 206 TO AN Y INCOME-TAX AUTHORITY; (IV) IN ALL STATEMENTS PREPARED AND DELIVERED OR C AUSED TO BE DELIVERED IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (3 ) OF SECTION 200: .. 5. A CAREFUL PERUSAL OF THIS PROVISION INDICATES TH AT WHERE AN AMOUNT HAS BEEN PAID AFTER DEDUCTING TAX, THEN, THE PERSON DEDUCTING TAX IS REQUIRED TO QUOTE THE PERMANENT ACCOUNT NUMBER IN T HE STATEMENTS MENTIONED IN THE PROVISION. NON-COMPLIANCE WITH TH E MANDATE OF SECTION 139A ATTRACTS PENALTY U/S 272B, THE RELEVAN T PART OF WHICH READS AS UNDER:- PENALTY FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 139A. 272B. (1) IF A PERSON FAILS TO COMPLY WITH THE PROV ISIONS OF SECTION 139A, THE ASSESSING OFFICER MAY DIRECT THAT SUCH PE RSON SHALL PAY, BY WAY OF PENALTY, A SUM OF TEN THOUSAND RUPEES. (2) IF A PERSON WHO IS REQUIRED TO QUOTE HIS PERMAN ENT ACCOUNT NUMBER IN ANY DOCUMENT REFERRED TO IN CLAUSE (C) OF SUB-SE CTION (5) OF SECTION 139A, OR TO INTIMATE SUCH NUMBER AS REQUIRED BY SUB -SECTION (5A) OR SUB-SECTION (5C) OF THAT SECTION, QUOTES OR INTIMAT ES A NUMBER WHICH IS FALSE, AND WHICH HE EITHER KNOWS OR BELIEVES TO BE FALSE OR DOES NOT BELIEVE TO BE TRUE, THE ASSESSING OFFICER MAY DIREC T THAT SUCH PERSON SHALL PAY, BY WAY OF PENALTY, A SUM OF TEN THOUSAND RUPEES. ITA NOS.492 TO 495/DEL/2014 5 (3) NO ORDER UNDER SUB-SECTION (1) OR SUB-SECTION ( 2) SHALL BE PASSED UNLESS THE PERSON, ON WHOM THE PENALTY IS PROPOSED TO BE IMPOSED, IS GIVEN AN OPPORTUNITY OF BEING HEARD IN THE MATTER. 6. IT IS OBVIOUS THAT THE PROVISIONS OF SUB-SECTION (2) ARE NOT ATTRACTED WHEN THERE IS A VIOLATION OF SUB-SECTION (5B) OF SE CTION 139A. SUCH VIOLATION SHALL BE COVERED UNDER THE PROVISIONS OF SUB-SECTION (1) WHICH PROVIDES THAT IN CASE OF A FAILURE `TO COMPLY WITH THE PROVISIONS OF SECTION 139A, THE ASSESSING OFFICER MAY DIRECT THAT SUCH PERSON SHALL PAY, BY WAY OF PENALTY, A SUM OF TEN THOUSAND RUPEE S. I AM CONFRONTED WITH A SITUATION IN WHICH THE ASSESSEE ORIGINALLY D ID NOT HAVE THE CORRECT PANS OF ALL THE PERSONS FROM WHOSE PAYMENTS, TAX AT SOURCE WAS REQUIRED TO BE DEDUCTED. DESPITE THAT, THE ASSESSE E DID DEDUCT TAX AT SOURCE AND PAID THE AMOUNT TO THE EXCHEQUER WELL IN TIME. THE ONLY FAULT OF THE ASSESSEE WAS IN NOT FILLING PANS OF SO ME OF THE DEDUCTEES WHICH WERE NOT AVAILABLE AT THE TIME OF FILING E-RE TURNS. AS SOON AS THE AO ISSUED NOTICE FOR IMPOSING PENALTY U/S 272B, THE ASSESSEE OBTAINED THE RELEVANT PANS AND COMPLIED WITH THE REQUIREMENT BY FILING THE REVISED STATEMENT. ITA NOS.492 TO 495/DEL/2014 6 7. AT THIS JUNCTURE, IT IS PERTINENT TO NOTE TH AT THE PROVISIONS OF SECTION 272B ARE SUBJECT TO SECTION 273B OF THE ACT, WHICH PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISION S, INTER ALIA, OF SECTION 272B, NO PENALTY SHALL BE IMPOSED FOR ANY F AILURE REFERRED TO IN THE SAID PROVISION IF IT IS PROVED THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE. CONSIDERING THE ENTIRETY OF THE FAC TS AND CIRCUMSTANCES PREVAILING IN THE INSTANT CASE, I FIND THAT THERE W AS A REASONABLE CAUSE IN THE ASSESSEE NOT MENTIONING THE CORRECT PANS IN RES PECT OF A FEW DEDUCTEES AT THE TIME OF ORIGINALLY FILING E-TDS QU ARTERLY STATEMENT OF DEDUCTION OF TAX IN FORM NO.26Q, WHICH WERE IN FACT , NOT AVAILABLE WITH THE ASSESSEE AT THE MATERIAL TIME. AS AND WHEN THE NECESSARY INFORMATION WAS OBTAINED, THE ASSESSEE CORRECTED TH E LAPSE AND REVISED THE STATEMENT BY FURNISHING DUE PARTICULARS THEREOF . IN MY CONSIDERED OPINION, THE LD. CIT(A) WAS JUSTIFIED IN DELETING T HE PENALTY BY RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL LTD. VS. STATE OF ORISSA (1972) 83 ITR 26 (SC ), IN WHICH THE HONBLE SUPREME COURT HAS LAID DOWN THAT PENALTY CA NNOT BE ORDINARILY IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTS DELIBE RATELY IN DEFIANCE OF ITA NOS.492 TO 495/DEL/2014 7 LAW OR IS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONE ST, OR ACTS IN CONSCIOUS DISREGARD OF ITS OBLIGATION. I FIND THAT THE JUDGMENT OF THE HONBLE SUPREME COURT IS FULLY APPLICABLE IN THE FA CTS AND CIRCUMSTANCES AS ARE INSTANTLY PREVAILING. AS SUCH , I APPROVE THE VIEW TAKEN BY THE LD. CIT(A) IN DELETING THE PENALTY FOR ALL THE FOUR QUARTERS OF THE FINANCIAL YEAR 2009-10. 8. IN THE RESULT, ALL THE FOUR APPEALS STAND DISMIS SED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 15.06.201 5. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 15 TH JUNE, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.