ACIT, New Delhi V. Northern India Transport Co, New Delhi

ITA 533/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5468 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 27-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A; 194C; 201(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT ME MBER ITA NOS.:- 521, 527, 533/DEL/2015 ASSESSMENT YEARS: 1999-2000, 2001-02, 2003-04 O R D E R PER AMIT SHUKLA, J.M. THE AFORESAID APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST SEPARATE IMPUGNED ORDER OF EVEN DATED 27.10.2014 PA SSED BY THE LD. CIT (APPEALS) XII, NEW DELHI IN RELATION TO THE PENAL TY PROCEEDINGS U/S 272A(2)(K), 272(2)(G) AND 271C. THE REVENUE HAS RAI SED FOLLOWING GROUND WHICH IS COMMON IN ALL THE YEARS:- ACIT CIRCLE-76(1) NEW DELHI. VS. NORTHERN INDIA TRANSPORT CO. 8551 GULSHAN GUEST HOUSE 2 ND FLOOR, ROSHANA ROAD DELHI PAN AAFFN0106P (APPELLANT) (RESPONDENT) DEPARTMENT BY: NONE ASSESSEE BY : SHRI NARENDER ARORA, CA DATE OF HEARING 02/05/2018 DATE OF PRONOUNCEMENT 02/05/2018 2 (1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN DELETING THE PENALTIES U/S 272A (2(K), 272A(2)(G) AND 271C WHEN THE DEPARTMENT HAS NOT ACCEPTED THE F INDINGS OF THE HONBLE ITAT IN THE QUANTUM APPEAL? 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENG AGED IN THE BUSINESS OF TRANSPORTATION OF GOODS. A SURVEY U/S 133A WAS CARRIED OUT ON 21.2.2003 ON THE BUSINESS PREMISES OF THE ASSES SEE, WHEREIN IT WAS NOTICED THAT ASSESSEE WAS IN DEFAULT IN NOT DEDUCTI NG TDS ON VARIOUS EXPENSES AND THEREBY DETERMINED THE LIABILITY U/S 201(1) / 201(1A) FOR THE FINANCIAL YEARS 1998-99 TO 2002-03. T HE SAID ORDERS ON MERITS HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE NO T ONLY BY THE LD. CIT(A) BUT BY THE TRIBUNAL VIDE ORDER DATED 16.12.201 1 IN ITA NO. 4462-4467/DEL/2011. THE AO HAS LEVIED PENALTIES U/S 272A (2)(K), 272A (2)(G) AND 271C ON THE GROUND THAT, FIRSTLY , THERE WAS A DELAY IN FILING OF E TDS RETURN; SECONDLY , ASSESSEE FAILED TO ISSUE TDS CERTIFICATE IN TIME; AND LASTLY , THERE WAS SHORT DEDUCTION OF TDS U/S 201(1). ACCORDINGLY, FOLLOWING AMOUNT OF PENALTY HAS BEEN IMPOSED BY HIM IN VARIOUS YEARS:- F.Y U/S AMOUNT OF PENALTY IMPOSED (RS.) 1998-99 272A(2)(K) 4273000/- 272A(2)(G) 2647900/- 271C 500485/- TOTAL 74,21,385/- 1999-2000 272A(2)(K) 3980800/- 3 4. LD. CIT (A) HAS DELETED THE PENALTY LEVIED UND ER EACH SECTION AFTER DETAILED DISCUSSION. IT HAS BEEN POINTED OUT BY THE LD. COUNSEL THAT SIMILAR PENALTY HAS BEEN DELETED BY THE TRIBUNAL FOR THE ASSESSMENT YEAR FOR VARIOUS ASSESSMENT YEARS IN ITA NOS. 519 TO 532/DEL/2015 VIDE ORDER DATED 26.2.2018 WHEREIN SIMILAR GROUNDS WERE RAISED BY THE REVENUE. 5. AFTER CONSIDERING THE RELEVANT FINDING IN IMP UGNED ORDER AS WELL AS THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS DELETED THE PENALTY ON THE GROUND THAT IN THE QUANTUM APPEAL THE MATTER HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT OBSERVATION AND 272A(2)(G) 2465200/- 271C 69218/- TOTAL 65,15,218/- 2000-01 272A(2)(K) 3688200/- 272A(2)(G) 2282400/- 271C 478154/- TOTAL 64,48,754/- 2001-02 272A(2)(K) 3396200/- 272A(2)(G) 2100000/- 271C 744495/- TOTAL 62,40,695/- 2002-03 272A(2)(K) 3104200/- 272A(2)(G) 1917500/- 271C 784403/- TOTAL 58,06,103/- 4 FINDING OF THE TRIBUNAL IN ASSESSEES OWN CASE IS RE PRODUCED HEREUNDER:- 3. COMMON GROUNDS RAISED IN THESE APPEA LS READ AS UNDER: 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) WAS RIGHT IN DELETING THE PENALTIES U/S 272A (2) (K), 272A(2)(G) AND 271C WHEN THE DEPARTMENT HAS NOT ACC EPTED THE FINDINGS OF THE HON 'BLE ITAT IN THE QUANTUM APPEAL ? 4. FROM THE ABOVE GROUND, IT IS .GATHERED THAT THE GRIEVANCE OF THE DEPARTMENT RELATES TO THE DELETION OF PENALTIES LEV IED BY THE AO U/S 271A(2)(K), 272A(2)(G) AND 271C OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 5. DURING THE COURSE OF HEARING, THE ID. COUNSEL FO R THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT THE QUANTUM ADDITION S ON THE BASIS OF WHICH THESE PENALTIES WERE LEVIED BY THE AO HAD ALREADY BEEN DELETED BY THIS BENCH OF THE TRIBUNAL IN ITA NOS. 4 463 TO 4467IDE1L20 11 FOR THE ASSESSMENT YEARS 1999- 2000 TO 2003-04 VIDE ORDER DATED 16.12.2011. THE SAID ORDER HAS NOT BEEN REVERSED BY THE HON'BLE HIGH COURT AND THAT THE APP EALS OF THE DEPARTMENT WERE DISMISSED IN ITA NO. 367/2015 BY TH E HON'BLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 03.07,.2 015 (COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON REC ORD). THE AFORESAID CONTENTION OF THE ID. COUNSEL FOR THE ASS ESSEE WAS NOT CONTROVERTED BY THE ID. SR. DR. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ITAT VIDE AFORESAID REFERRED TO ORDER DATED 16.12.2011 DELETED INTEREST LEVIED BY THE AO U/S 201(1)/201(1A) OF THE ACT AND THE HON BLE JU RISDICTIONAL 5 HIGH COURT, DISMISSED THE APPEAL OF THE DEPARTMENT FILED AGAINST THE AFORESAID REFERRED TO ORDER. IN THE PRESENT CAS E, THE FINDING OF NON- COMPLIANCE OF TDS PROVISION ATTRIBUTABLE TO TH E ASSESSEE, AS GIVEN BY THE AO IN THE ASSESSMENT ORDER STANDS KNOC KED OFF. THEREFORE, THE IMPUGNED PENALTIES WERE RIGHTLY DELE TED BY THE ID. CIT(A). WE THINK IT APPROPRIATE TO REPRODUCE THE RE LEVANT FINDINGS GIVEN IN PARAS 13 & 14 OF THE AFORESAID ORDER DATED 16.12.2011 BY THE ITAT WHICH READ AS UNDER: '13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE CAR EFULLY GONE THROUGH THE ORDER PASSED BY THE ASSESSING OFFICER U /S 201 (1)/201 (1A) OF THE ACT AND ALSO THE ORDER PASSED B Y THE LEARNED CIT (A). THE GROUND ON WHICH THE RELIEF HAS BEEN GI VEN BY LEARNED CIT (A) TO THE ASSESSEE ARE: (I) THE ISSUE WAS THOROUGHLY CONSIDERED IN THE FIR ST ROUND OF THE PROCEEDINGS WHEN LIABILITY OF THE ASSESSEE WAS CRYS TALLIZED AND THE DEMAND WAS DULY PAID; (II) ALL THE DETAILS WERE MADE AVAILABLE TO THE AS SESSING OFFICER DURING THE COURSE OF FIRST ROUND OF PROCEEDINGS. TH E DETAILS BEING AVAILABLE ON THE RECORD OF THE ASSESSING OFFI CER CLEARLY DESCRIBE THAT NONE OF THE INDIVIDUAL PAYMENT EXCEED ED RS. 20,000/- AND THIS POSITION WAS IN ACCORDANCE WITH T HE LAW APPLICABLE FOR THE RELEVANT TIME UNDER THE PROVISIO NS OF SECTION 194-C; (III) THE ABSENCE OF BOOKS OF ACCOUNT DURING THE S ECOND ROUND OF PROCEEDINGS CANNOT BE VIEWED AGAINST THE ASSESSEE A S, ACCORDING TO RULE 6F(5), THE ASSESSEE CAN VALIDLY W EED OUT THE BOOKS OF ACCOUNT AND, THEREFORE, THE ASSESSEE I S NOT PRESUMED TO MAINTAIN THOSE BOOKS OF ACCOUNT. IN THA T CASE 6 THE DETAILS AVAILABLE WITH THE ASSESSING OFFICER ON HIS FILE WERE RELEVANT; AND (IV) THE ORDER CONSEQUENTIAL TO THE SECOND ROUND O F THE PROCEEDINGS WAS BARRED BY LIMITATION IN ACCORDANCE WITH THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF NHK JAPAN REPORTED IN 305 ITR 137 (DEL). FOR THIS PURPO SE, LEARNED CIT (A) HAS ALSO RELIED UPON THE DECISION O F SPECIAL BENCH OF IT AT MUMBAI IN THE CASE OF MAHINDRA & MAH INDRA REPORTED IN 122 TTJ (SB) 577. 14. SO FAR AS IT RELATES TO THE LAST GROUND THAT TH E PROCEEDINGS HAVE BECOME TIME BARRED, IT IS THE CASE OF THE LEAR NED DR THAT BY VIRTUE OF AMENDMENT BROUGHT INTO THE STATUTE BY FINANCE (NO.2) ACT OF 2009 WHEREBY SECTION 201 (3) WAS INSE RTED W.E.F I' APRIL, 2010 HAS CLEARLY DESCRIBED THAT ORDERS FOR F INANCIAL YEAR COMMENCING ON OR BEFORE 1.4.2007 CAN BE PASSED AT A NY TIME ON OR BEFORE 31ST MARCH, 2011. THEREFORE, IT IS THE CASE OF THE LEARNED DR THAT LEARNED CIT (A) HAS WRONGLY HELD TH AT THE IMPUGNED ORDER WAS TIME BARRED. EVEN IF WE DO NOT G O INTO THE CORRECTNESS OF THE SUBMISSIONS OF THE LEARNED DR, O THERWISE ALSO, WE FIND THAT THERE IS NO INFIRMITY IN THE ORD ER OF THE CIT (A) WHEN HE HAS HELD THAT THE LIABILITY OF THE ASSESSEE HAD BEEN CRYSTALLISED DURING THE FIRST ROUND OF PROCEEDINGS I.E., IN THE YEAR 2003 ITSELF AND THE ENTIRE DETAILS WERE AVAILABLE O N THE RECORD OF ASSESSING OFFICER ON THE BASIS OF WHICH IT CAN BE A SCERTAINED THAT NO INDIVIDUAL ITEM EXCEED A SUM OF RS. 20, 000 /- WHICH WAS THE LIMIT AT THAT TIME FOR MAKING A PAYMENT AND OVERALL LIMIT WAS NOT THERE. IT HAS BEEN SHOWN BY THE LEARN ED AR THAT IN RESPECT OF ITEMS REQUIRING THE DEDUCTION OF TAX UND ER 194C WERE EITHER BELOW THE LIMIT OF DEDUCTION OF TAX OR APPRO PRIATE LIABILITY WAS ASCERTAINED DETERMINED AND TDS SO ASCERTAINED W AS PAID 7 IN THE YEAR 2003 ITSELF. IF IT IS SO, THEN, WE FIND THAT ON MERIT THERE IS NO INFIRMITY IN THE ORDER OF THE CIT (A) V IDE WHICH IT HAS BEEN HELD THAT THE ASSESSEE DOES NOT HAVE ANY LIABI LITY OF TDS IN EXCESS OF WHAT WAS DETERMINED AND PAID DURING TH E YEAR 2003. THE REQUIRED EVIDENCE HAS BEEN PLACED ON RECO RD IN THE SHAPE OF LETTERS EXCHANGED BETWEEN THE ASSESSEE AND THE ASSESSING OFFICER IN THE YEAR 2003. THEREFORE, FIND ING NO MERIT IN THE DEPARTMENTAL APPEALS WE DISMISS ALL THE APPE ALS FILED BY THE REVENUE. 7. WE, THEREFORE, BY KEEPING IN VIEW THE TOTALITY O F THE FACTS OF THE PRESENT CASE, DO NOT SEE ANY INFIRMITY IN THE IMPUG NED ORDER PASSED BY THE ID. CIT(A) AND ACCORDINGLY DO NOT SEE MERIT IN THESE APPEALS OF THE DEPARTMENT. 6. THUS, RESPECTFULLY FOLLOWING THE AFORESAID DECI SION OF THE TRIBUNAL RENDERED IN ASSESSEES OWN CASE, WE DELETE THE PENAL TIES LEVIED UNDER VARIOUS SECTIONS AND UPHOLD THE ORDER OF THE LD. CIT ( A. 7. IN THE RESULT APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 2 ND MAY, 2018. SD/- SD/- (PRASHANT MAHARISHI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02/05/2018 VEENA COPY FORWARDED TO 8 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI