State Bank of Bikaner & Jaipur, BIKANER V. Addl. CIT(TDS), JODHPUR

ITA 54/JODH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54379 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 29-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NIRMAL KUMAR SHARDA

Judgement Text

1 ITA 54(3)-10 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 54, 55 & 56/JODH/2010 ASSTT. YEAR : 2006-07 & 07-08. STATE BANK OF BIKANER & JAIPUR, VS. THE ADDL. CIT (TDS), LALGARH, BIKANER. JODHPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NIRMAL KUMAR SHARDA RESPONDENT BY : SHRI MAHESH KUMAR DATE OF HEARING : 02.12.2011. DATE OF PRONOUNCEMENT : 09.12.2011 ORDER DATED : 09/12/2011. PER R.K. GUPTA, J.M. THESE ARE THREE APPEALS BY ASSESSEE AGAINST CONFIR MING THE LEVY OF PENALTY UNDER SECTION 272(2)(K) FOR ASSESSMENT YEARS 2006-07 AND 2007-08. 2. THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS NOT FILED ITS QUARTERLY STATEMENT IN FORM NO. 24Q FOR THE FOURTH QUARTER IN TIME FOR THE FINANCIAL YEAR 2005-06. IT IS SEEN THAT THERE WAS A DELAY OF 289 DAYS IN FILING OF THE QUAR TERLY STATEMENT. THEREFORE, THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE THAT W HY PENALTY UNDER SECTION 272(2)(K) BE NOT IMPOSED. REPLY WAS FILED, HOWEVER, THE SAME WA S NOT FOUND SATISFACTORY. ACCORDINGLY, HE LEVIED THE PENALTY OF RS. 28,900/- @ RS.100/- FOR EACH DAY OF DEFAULT. THE LD. CIT (A) ALSO CONFIRMED THE ACTION OF THE AS SESSING OFFICER. 2 3. THE LD. COUNSEL OF THE ASSESSEE FILED WRITTEN SU BMISSIONS. 4. ON THE OTHER HAND, THE LD. D/R PLACED RELIANCE O N THE ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A). 5. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A) AND WRITTEN SUBMISSIONS, WE FIND THAT THERE WAS A BONAFIDE IN F ILING THE FORM NO. 24Q LATE. IT IS SEEN THAT THE AMOUNT OF TDS OF RS. 29,000/- WAS PAID ON 29.3.2006 ON WHICH DATE THE SAME WAS DEDUCTED. DUE DATE OF DEPOSIT WAS 07.04.2006. HOWEVER, AS STATED ABOVE, THE ASSESSEE DEPOSITED THE TDS ON THE SAME DAY ON WHICH THE TDS WAS DEDUCTED I.E. 29.3.2006. IT MEANS THAT TAX WAS DEDUCTED IN TIME AND DEPOSITED IN THE GOVERNMENT ACCOUNT IN TIME. THEREFORE, IT IS SEEN THAT THERE W AS NO LOSS OF REVENUE OF ANY KIND. ONLY DEFECT/DEFAULT REMAINS THAT ASSESSEE COULD NOT FURN ISH FORM NO. 24Q IN TIME. IT WAS ARGUED THAT THERE WAS A CHANGE IN THE MANAGEMENT AS GENERAL MANAGER WAS AT THE VERGE OF RETIREMENT AND NEW INCUMBENT WAS NOT AWARE OF TH E FACTUAL POSITION. THEREFORE, THERE WAS A DELAY IN FILING FORM NO. 24Q. 6. IN CASE OF RAJASTHAN TRIBAL AREA DEVELOPMENT COO PERATIVE FEDERATION LTD., 60 TTJ 427, THE JAIPUR BENCH OF THE TRIBUNAL HAS HELD THAT WE HAVE NOTICED THAT THERE IS NO DEFAULT ON THE PART OF THE APPELLANT EITHER IN DEDU CTING THE TAX AT SOURCE OR IN DEPOSITING THE SAME INTO GOVT. ACCOUNT. THIS FACT HAS NOT BEEN DISPUTED EVEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. THE ONLY DEFAULT IS IN FURNISHING STATEMENT OF TDS IN FORM NO. 26 WHICH IN VIEW OF THE APPELLANTS EXPLANATION IS ONLY A TECHNICAL DEFAULT, FOR WHICH WE ARE OF THE OPINION THAT SUCH A PENAL ACTION IS N OT JUSTIFIED, BECAUSE THE APPELLANT DEFAULT IS PURELY OF A TECHNICAL OR VENIAL NATURE. 3 7. THE HONBLE SUPREME COURT IN CASE OF HINDUSTAN S TEEL LTD. VS. STATE OF ORISSA, 83 ITR 26 (HON'BLE SUPREME COURT), HAS HELD THAT WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BR EACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRE SCRIBED THE STATUTE THEN IN THOSE CASES THERE WAS NO JUSTIFICATION IN IMPOSING THE PENALTY. 8. THE DECISION OF JAIPUR BENCH OF THE TRIBUNAL (SU PRA) AND THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT WERE CONSIDERED BY THE DELHI BENCH OF THE TRIBUNAL IN CASE OF DISTRICT EXCISE OFFICER, 69 TTJ 312 AND PEN ALTY LEVIED ON SIMILAR GROUND WAS CANCELLED. SINCE THIS IS A DEFAULT OF A TECHNICAL OR VENIAL NATURE, THEREFORE, IN OUR CONSIDERED VIEW, PENALTY LEVIED AND CONFIRMED BY LD . CIT (A) IS NOT JUSTIFIED. ACCORDINGLY, WE DELETE THE LEVY OF PENALTY FOR LAST QUARTER OF FINANCIAL YEAR 2005-06. 9. SIMILARLY FOR THE FIRST QUARTER OF FINANCIAL YEA R 2006-07, FORM NO. 24Q WAS FILED LATE BY 259 DAYS AND FOR THE SECOND QUARTER FORM NO . 24Q WAS SUBMITTED LATE BY 167 DAYS. FOR THE DEFAULT OF FIRST QUARTER AND SECOND Q UARTER, THE ASSESSING OFFICER LEVIED PENALTY OF RS. 18,900/- AND RS. 16,700/- RESPECTIVE LY. HOWEVER, THE TAX DUE WAS DEDUCTED AND DEPOSITED IN GOVT. ACCOUNT IN TIME. T HE DUE DATE WAS 15.7.2006. HOWEVER, RETURN WAS FILED ON 31.3.2007. SIMILARLY FOR SECON D QUARTER THE DUE DATE WAS 15.10.2006, HOWEVER, THE FORM WAS FILED ON 31.3.2007. IT IS SE EN THAT TAX WAS DEPOSITED IN TIME BEFORE THE DUE DATE. THE DEFAULT IN SUBMITTING FOR M NO. 24Q IS ALSO SIMILAR AS WAS 4 TH QUARTER OF 2005-06. WE HAVE ALREADY CANCELLED THE LEVY OF PENALTY BY HOLDING THAT DEFAULT WAS TECHNICAL AND VENIAL IN NATURE AND, THE REFORE, PENALTY WAS NOT LEVIABLE. ON SIMILAR REASONING, THE PENALTY LEVIED FOR THIS FINA NCIAL YEAR IS ALSO CANCELLED. 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED. 4 11. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- THE STATE BANK OF BIKANER & JAIPUR, BIKANER. THE ADD. CIT, (TDS), JODHPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 54(3)/JODH/2010) BY ORDER, AR ITAT JODHPUR.