General Manager, Ambala Cantt. V. ITO (TDS), Panchkula

ITA 503/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60928 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.503 /CHD/2012 (ASSESSMENT YEAR: 2009-10) GENERAL MANAGER, VS. THE INCOME TAX OFFICER(TDS ), DISTT. INDUSTRIES OFFICE, PANCHKULA. AMBALA CANTT. PAN: RTKG05196C (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT.JAISHREE SHARMA, DR DATE OF HEARING : 02.07.2012 DATE OF PRONOUNCEMENT : 06.07.2012 O R D E R PER SUSHMA CHOWLA, J.M. : THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS), ROHTAK DATED 09.02.2012 RELATING TO ASSESSMENT YEAR 2009-10 AGAINST THE PEN ALTY LEVIED U/S 272B OF INCOME TAX ACT, 1961. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD INCOME TAX OFFICER(TDS) ( HAS ERRED IN LAW AND FACT S IN IMPOSING THE PENALTY OF RS.30000 FOR DEFAULT U/S 13 9A(5B)OF THE INCOME TAX ACT 1961. 2. IN THE ORDER GIVEN BY THE LD INCOME TAX OFFICER (TDS) IT IS MENTIONED THAT FIRST NOTICE HAS BEEN ISSUED TO T HE DEDUCTOR ON 02/03/2010, THE GIVEN NOTICE WAS RECEIV ED IN OUR OFFICE ON 18/03/2010 AND AS REQUIRED IN THE NOT ICE AN PROPER REPLY WAS SUBMITTED ON DATED 29/03/2010 BUT ORDER OF LD INCOME TAX OFFICER(TDS) MENTIONED 'NEITHER TH E DEDUCTOR OR HIS REPRESENTATIVE ATTENDED THE PROCEED INGS NOR FURNISHED ANY SATISFACTORY REPLY OR SUPPORTING EVID ENCES 2 THEREOF.' INCOME TAX OFFICER(TDS)HAS NOT GIVEN ANY CREDIT FOR TIMELY COMPLIANCE OF THE NOTICE. 3. FIRST NOTICE RECEIVED BY US ON 18/03/2010 CLEARLY STATED 'YOUR REPLY IN THIS REGARD MAY PLEASE BE SEN T WITHIN 15 DAYS OF RECEIPT HEREOF. THERE WAS NO MENTION AB OUT FILLING OF REVISE RETURN. IN RESPONSE OF THE NOTIC E DATED 02/03/2010 WE HAVE GIVEN PROPER REPLY TO THE LD INC OME TAX OFFICER (TDS). AT THAT TIME THESE ALL SYSTEMS WAS N EW AND EVEN LD INCOME TAX OFFICER(TDS) HAS ALSO ASKED ONLY ASSESSES REPLY REGARDING MISSING FAN NUMBERS AND AS SESSES HAS GIVEN PROPER REPLY. 4. IN THE ORDER GIVEN BY THE LD INCOME TAX OFFICER (T DS) IT IS MENTIONED THAT FINAL SHOW CAUSE NOTICE WAS IS SUED ON 30.08.2010, BUT NO SUCH NOTICE WAS RECEIVED IN OUR OFFICE. AREA POST OFFICE ALSO CONFIRM THAT NO REGISTRY/SPEE D POST FROM INCOME TAX OFFICE PANCHKULA WAS DELIVERED TO O UR OFFICE DURING THE MONTH OF SEPTEMBER 2010. WE RECEI VED THE NOTICE OF PENALTY ON 01/10/2010,AN RESPONSIBLE PERS ON WAS ALSO SENT TO THE ITO (TDS) PANCHKULA ON DT 01/10/20 10 FOR TAKING THE INFORMATION ABOUT THE NOTICE DATED 30/08 /2010,BUT NO SUCH INFORMATION WAS AVAILABLE IN THEIR GOOD OFF ICE, THEY REFUSE TO PROVIDE ANY INFORMATION AND DIRECT US TO DEPOSIT THE PENALTY OR FOR MAKING APPEAL AGAINST THE ORDER. 5. LD INCOME TAX OFFICE HAS GIVEN ONLY ONE OPPORTUNITY AND WITHOUT GIVING AN OTHER OPPORTUNITY HE HAS IMPO SED PENALTY OF RS.30000 VIDEHISORDERDT27/09/2010.EVENOT HERWISE IT WAS TECHNICAL AND SINGLE DEFAULT OF ONE DEDUCTOR AND NOT MULTIPLE DEFAULTS TO ATTRACT PENALTY 3 TIMES, THE L IMIT PROVIDED U/S 272B OF THE INCOME TAX ACT. 6. WE HAVE FILE THE REVISE RETURN ON DATED 26/10/2010 THUS OBSERVE DUE COMPLIANCE. RECEIPT OF FILLING OF REVISE RETURN HAS BEEN ATTACHED HEREWITH. 7. LD CIT (APPEALS) IS UNJUSTIFIED IN NOT APPRECIATING THAT ASSESSEE HAS MADE DUE COMPLIANCE OF THE FIRST NOTICE OF THE ITO(TDS). ORDER OF LD CIT (APPEALS) CLEARLY STA TED THAT 'THE CONDUCT OF THE APPELLANT CAN BE SEEN FROM THE ABOVE TO BE VERY CASUAL WITH LITTLE RESPECT/INTENT TO COMPLY WITH THE PROVISIONS OF IT ACT', WHILE WE HAVE SUBMITTED PROP ER REPLY 3 TO THE INCOME TAX OFFICER, WHEN WE RECEIVED THE NOT ICE. SECOND NOTICE AS MENTIONED BY THE LD INCOME TAX OFF ICER (TDS) WAS NOT RECEIVED BY US AS SUCH COMPLIANCE WAS NOT POSSIBLE. CIT (APPEAL) PANCHKULA HAS GIVEN FAVOURAB LE DECISION IN THE FOLLOWING CASE : A) GOVT SR SECONDARY SCHOOL,NAHRA DEHRA APPEAL NO 114/AMB/10-LL DT 30/08/2011. EVEN ITAT(APPEAL) CHANDIGARH HAS ALSO GIVEN FAVOURA BLE DECISION IN CASE OF BANK OF BARODA, AMBALA VS ITO ( TDS) PANCHKULA ITA NO 6/CHD/2012 . 7. AFTER TAKING IN THE CONSIDERATION AS STATED ABOV E, IT IS VERY MUCH CLEAR THAT WE HAVE NOT MADE ANY DEFAULT I N COMPLIANCE OF THE NOTICE OF LD INCOME TAX OFFICER ( TDS), EVEN DEFAULT IN TDS RETURN FOR MISSING/INVALID PAN NUMBERS WAS TECHNICAL NOT INTENTIONAL. WE HAVE DEDUCTED ALL TDS IN TIME AND DEPOSITED IN TIME. THERE IS NO REVENUE LOS S TO THE GOVT. EVEN IN THE YEAR 2008-2009 INCOME TAX DEPARTM ENT ALSO ALLOWS THE DEDUCTOR TO FILE THE TDS RETURNS WITH MI SSING PAN NUMBERS. AT THAT TIME ALL THESE SYSTEMS WAS NEW. TH EREFORE I REQUEST YOUR. KIND HONOUR TO DROP THE ORDER OF PENA LTY AS WE ASSURE YOU NOT TO REPEAT THIS TYPE OF MISTAKE IN TD S RETURNS IN FUTURE. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHA LF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. WE PROCE ED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED. DR FOR TH E REVENUE AS ISSUE IS COVERED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E DURING THE YEAR UNDER CONSIDERATION HAD FILED THE TDS QUARTERLY STA TEMENT FOR THE FINANCIAL YEAR 2008-09 IN FORM NO. 24Q ON 3.6.2009. THE ASSESSING OFFICER ON THE SCRUTINY OF THE SAID E-TDS RETURN NO TED THAT THE PAN NUMBERS OF THREE DEDUCTEES WERE FOUND TO BE INVALID /MISSING. THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE TO THE A SSESSEE. HOWEVER, AS NO RESPONSE WAS RECEIVED FROM THE ASSESSEE, THE PEN ALTY U/S 272B OF THE ACT WAS LEVIED AT RS. 30,000/-. BEFORE THE CIT(A), THE CONTENTION OF THE 4 LD. AR FOR THE ASSESSEE WAS THAT IT HAD FILED ITS Q UARTERLY TDS RETURN AND DEPOSITED TAXES AND HAD REASONABLE CAUSE FOR N OT SUBMITTING THE REQUISITE DETAILS. THE CORRECTION STATEMENT WAS FI LED ON 26.10.2010, WHICH WAS BEFORE THE LAST DATE OF HEARING. THE CIT (A) UPHELD THE LEVY OF PENALTY U/S 272B OF THE ACT. 5. ON PERUSAL OF THE RECORD, WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SEC TION 272B OF THE ACT. PENALTY U/S 272B OF THE ACT IS LEVIABLE IN ALL SUCH CASES WHERE THE ASSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS O F SECTION 139A(2) OF THE ACT. IN THE FACTS OF THE PRESENT CASE, THE ASS ESSEE HAD E-FILED ITS QUARTERLY TDS RETURN FOR THE FINANCIAL YEAR 2008-09 ON 26.10.2010. IN THE SAID TDS RETURN, IT HAD REFLECTED INFORMATION I N RESPECT OF DEDUCTEES. HOWEVER, PAN NUMBERS OF THREE DEDUCTEE FURNISHED BY THE ASSESSEE WERE FOUND TO BE INCORRECT. THE ASSESSEE FAILED TO FURNI SH THE REQUISITE INFORMATION BEFORE THE ASSESSING OFFICER. HOWEVER, CORRECT PAN NUMBERS WERE LATER AVAILABLE WITH THE ASSESSEE AND THE ASSESSEE HAD FILED REVISED COMPUTATION ON 26.10.2010. IN THE ABOVE SAI D FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW, THAT THE ASSESSEE IS NOT EXIGIBLE TO LEVY OF PENALTY U/S 272B OF THE ACT. F URTHER, UNDER THE PROVISIONS OF SECTION 273B OF THE ACT, PENALTY IS N OT TO BE IMPOSED IN CASES WHERE THE ASSESSEE HAD ESTABLISHED THAT THERE WAS REASONABLE CAUSE FOR THE FAILURE REFERRED TO IN THE RESPECTIVE SECTI ONS LEVYING PENALTY UNDER THE ACT. IN THE TOTALITY OF FACTS AND CIRCUMS TANCES OF THE CASE, THE ASSESSEE HAD A BONAFIDE CAUSE FOR NOT FILING THE AB OVE SAID INFORMATION BEFORE THE ASSESSING OFFICER WHICH THOUGH WAS AVAIL ABLE WITH THE ASSESSEE AND THE REVISED COMPUTATION HAD ALSO BEEN FILED BY THE ASSESSEE UNDER WHICH COMPLETE INFORMATION OF PAN NUMBERS OF DEDUCTEES HAVE BEEN FURNISHED. ACCORDINGLY, WE HOLD THAT THE CLAIM OF THE ASSESSEE WAS BONAFIDE AND THERE WAS A REASONABLE CAUSE FOR NOT C OMPLYING WITH THE PROVISIONS OF THE ACT IN TIME. THE ASSESSEE UNDER THESE CIRCUMSTANCES IS 5 NOT EXIGIBLE TO LEVY OF PENALTY U/S 272B OF THE ACT AND ACCORDINGLY WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED U/S 272B OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 6 TH JULY, 2012. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 6 TH JULY, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH