BANK OF INDIA GOREGAON WEST BRANCH, MUMBAI V. ADDL CIT (TDS) RG 1, MUMBAI

ITA 542/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2232 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C W ANGOLKAR
• Assessee Lawyers: MUKESH KUMAR SR MANAGER
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.542/M/2015 ASSESSMENT YEAR: 2010-11 M/S. BANK OF INDIA, GOREGAON WEST BRANCH, CREADO HOUSE, NEXT TO MUNICIPAL SCHOOL, STATION ROAD, GOREGAON (WEST), MUMBAI 400 062 PAN: AAACB0472C VS. ADDL. CIT (TDS), RANGE 1, K.G. MITTAL BUILDING, CHARNI ROAD, MUMBAI - 400002 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MUKESH KUMAR, SR. MANAGER REVENUE BY : SHRI C.W. ANGOLKAR, D.R. DATE OF HEARING : 19.07.2016 DATE OF PRONOUNCEMENT : 27.07.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE BANK OF INDIA AGAINST THE ORDER DATED 16.10.2014 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2010-11. 2. SHRI MUKESH KUMAR, SR. MANAGER VIDE LETTER DATED 18.07.2016 HAS SOUGHT ADJOURNMENT OF THE CASE. HOWEVER, CONSIDERI NG THE NATURE OF SHORT ISSUE INVOLVED IN THIS CASE, WE PROCEED TO DECIDE T HE APPEAL ON MERITS. 3. THE ASSESSEE HAS AGITATED THE CONFIRMATION OF LE VY OF PENALTY UNDER SECTION 272A(2)(K) OF THE INCOME TAX ACT ON ACCOUNT OF FAILURE TO FURNISH QUARTERLY TDS STATEMENT IN TIME. THE ASSESSING OFF ICER (HEREINAFTER REFERRED TO AS THE AO) NOTED THAT THERE WAS DELAY IN FILING THE QUARTERLY TDS STATEMENTS. ITA NO.542/M/2015 M/S. BANK OF INDIA 2 HE ACCORDINGLY, INVOKING THE PROVISIONS OF SECTION 272A(2)(K) LEVIED PENALTY AT THE RATE OF RS.100 PER DAY FOR EACH DAY OF DEFAU LT AGGREGATING RS.97,100/-. 4. IN APPEAL, THE LD. CIT(A) CONFIRMED THE PENALTY. THE ASSESSEE, THUS, HAS COME IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. WE FIND THAT IT HAS BEEN PLEADED BEFORE TH E LOWER AUTHORITIES BY THE BANK THAT THE DEALING STAFF WAS REPLACED ON ACCOUNT OF RETIREMENT AND THERE WAS ACUTE SHORTAGE OF MANPOWER AND DUE TO TRANSFER PERI OD OF EMPLOYEES IN THE MONTH OF MAY AND JUNE, THE ASSESSEE BANK COULD NOT UNDERTAKE THE SUBMISSION OF QUARTERLY RETURNS AS PER SCHEDULE. HOWEVER, QUA RTERLY RETURNS WERE SUBMITTED ON 23.10.10 BY DEPLOYING THE STAFF BEYOND THEIR NORMAL WORKING HOURS AND ALSO IN HOLIDAYS. IT HAD THERE BEEN PRAY ED THAT DUE TO THE SHORTAGE OF STAFF THE QUARTERLY RETURNS COULD NOT BE FILED IN T IME. HOWEVER, THE TDS DEDUCTED WAS DEPOSITED IN TIME IN GOVERNMENT ACCOUN T AND THERE WAS NO LOSS OF REVENUE TO THE GOVERNMENT IN THIS RESPECT. IT H AS THEREFORE BEEN PLEADED THAT THERE WAS A REASONABLE CAUSE FOR NON FILING OF THE QUARTERLY TDS RETURNS IN TIME. 5. CONSIDERING THE ABOVE PLEADINGS AND OVERALL FACT S AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THERE WAS SOME JUSTIFIABLE R EASON ON THE PART OF THE BANK DUE TO SHORTAGE OF STAFF FOR NON FILING OF TDS QUAR TERLY RETURNS IN TIME. HOWEVER, WE FIND THAT THE DELAY IN FILING THE QUART ERLY RETURN RANGES FROM 130 DAYS TO 373 DAYS. CONSIDERING THE PLEADINGS OF THE ASSESSEE AND THE PERIOD OF DELAY IT CAN BE REASONABLY ASSUMED THAT AT THE MOST A LENIENT VIEW CAN BE TAKEN FOR NON FILING OF TDS RETURNS IN TIME AT THE MOST F OR A PERIOD OF 6 MONTHS. HOWEVER, DELAY MORE THAN 6 MONTHS CANNOT BE CONSIDE RED AS REASONABLE. HENCE, CONSIDERING THE OVERALL FACTS AND CIRCUMSTAN CES OF THE CASE, WE ORDER TO DELETE THE PENALTY UP TO THE PERIOD OF 180 DAYS BEI NG CONSIDERED AS REASONABLE PERIOD FOR DELAY OWING TO THE REASONS GIVEN BY THE ASSESSEE. HOWEVER, THE ITA NO.542/M/2015 M/S. BANK OF INDIA 3 DELAY BEYOND 180 DAYS CANNOT BE CONSIDERED ON ACCOU NT OF ANY REASONABLE GROUND. WE, THEREFORE, DIRECT THE AO TO DELETE THE PENALTY UP TO THE DELAY OF 180 DAYS IN FILING QUARTERLY TDS RETURNS. WE CONFI RM THE LEVY OF PENALTY UNDER SECTION 272A(2)(K) FOR THE DELAYED PERIOD BEY OND 180 DAYS. BEFORE PARTING WITH THE ORDER, WE WISH TO MAKE IT CLEAR TH AT OUR ABOVE DIRECTIONS WILL NOT BE TAKEN AS ANY BENCH MARK IN THIS RESPECT IN A NY OTHER CASE. THE PENALTY FOR DELAY UP TO 180 DAYS, HAS BEEN DELETED CONSIDER ING THE FACTS AND CIRCUMSTANCES OF THIS CASE ONLY IT SHOULD NOT BE CO NSIDERED AS LAYING DOWN OF ANY PROPOSITION OF LAW IN THIS RESPECT. 6. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE A SSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.07.2016. SD/- SD/- (D. KARUNAKARA RAO) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.07.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.