DISTRICT EXCISE OFFICE, RAJASTHAN SARKAR, EXCISE DEPARTMENT, KARAULI V. JOINT COMMISSIONER OF INCOME TAX, RANGE-TDS, UDAIPUR

ITA 547/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9749 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA CIT DHK
• Keywords: Principle of natural justice; Period of limitation; Bonafide mistake
• Section: 273B

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 547/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2011-12 DISTRICT EXCISE OFFICE, RAJASTHAN SARKAR, EXCISE DEPARTMENT, GULAB BAGH, KARAULI. CUKE VS. J.C.I.T., RANGE TDS, UDAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JDHDO3778F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI K.C. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24/09/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/09/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17/01/2018 OF LD. CIT(A), KOTA ARISING FROM THE PEN ALTY ORDER PASSED U/S 272A(2)(K) OF THE INCOME TAX ACT, 1961 (IN SHORT TH E ACT) FOR THE A.Y. 2011-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS O F APPEAL: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N DECIDING THE APPEAL EX-PARTE WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. THE LD. CIT(A) HAS ERRED ON FACT AND IN LAW IN C ONFIRMING THE LEVY OF PENALTY U/S 272A(2)(K) AT RS. 45,200/-. ITA 547/JP/2018_ DISTRICT EXCISE OFFICE VS JCIT 2 3. THE ASSESSEE CARVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 4. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 2. THE ASSESSEE IS A DISTRICT EXCISE OFFICER RESPONS IBLE FOR TAX COLLECTION AT SOURCE (TCS) AND PAYMENT OF THE SAME T O THE GOVERNMENT OF INDIA AS WELL AS FILING THE QUARTERLY TCS STATEMEN T IN THE FORM 27EQ. THE ASSESSING OFFICER NOTED THAT AN AMOUNT OF RS. 2, 50,327/- WAS THE TAX COLLECTIBLE AT SOURCE AND THE ASSESSEE WAS LIABL E TO FILE A QUARTERLY STATEMENT U/S 200(3) OF THE ACT FOR THE 2 ND QUARTER OF THE FINANCIAL YEAR 2010-11. THUS, THE DUE DATE OF FILING THE QUARTERLY STATEMENT WAS 15/10/2010 BUT THE ASSESSEE FILED THE QUARTERLY TCS STATEMENT ON 10/01/2012 RESULTING A DELAY OF 452 DAYS. THE ASSESS ING OFFICER, ACCORDINGLY, INITIATED THE PENALTY PROCEEDINGS U/S 272A(2)(K) OF THE ACT BY ISSUING NOTICE DATED 10/09/2012 AND 24/12/2012. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE, THE ASSESSING OFFICER F INALLY LEVIED THE PENALTY OF RS. 45,200/- @ RS. 100 PER DATE FOR DELAY OF 452 DAYS. 3. THE ASSESSEE FILED AN APPEAL AGAINST THE LEVY OF PENALTY BEFORE THE LD. CIT(A), HOWEVER, DESPITE THE NOTICE ISSUED BY THE LD. CIT(A), NO BODY HAS APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE L D. CIT(A) AND CONSEQUENTLY THE LD. CIT(A) HAS CONFIRMED THE PENALT Y LEVIED BY THE ASSESSING OFFICER U/S 272(2)(K) OF THE ACT. ITA 547/JP/2018_ DISTRICT EXCISE OFFICE VS JCIT 3 4. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE HAS DULY RESPONDED TO THE NOTICE ISSUED BY THE LD. CIT(A) AND ON THE FIRST OCCASION, THE ASSESSEE VIDE APPLICATIO N DATED 27/11/2017 REQUESTED FOR ADJOURNMENT AND THEREAFTER ON 30/11/2 017, THE ASSESSEE SENT WRITTEN SUBMISSIONS. THE LD AR HAS REFERRED TO T HE APPLICATION DATED 27/11/2017 FOR SEEKING ADJOURNMENT WHICH WAS SENT THR OUGH SPEED POST. FURTHER THE LD AR HAS REFERRED TO THE WRITTEN SUBMIS SIONS DATED 31/11/2017 WHICH WAS ALSO SENT THROUGH SPEED POST D ATED 06/12/2017 AND SUBMITTED THAT THE LD. CIT(A) HAS DECIDED THE AP PEAL OF THE ASSESSEE WITHOUT CONSIDERING THE APPLICATION FOR ADJOURNMENT AS WELL AS THE WRITTEN SUBMISSIONS OF THE ASSESSEE. HENCE, THE LD A R HAS SUBMITTED THAT THE IMPUGNED ORDER MAY BE SET ASIDE AS IT IS IN VIO LATION OF THE PRINCIPLES OF NATURAL JUSTICE. ALTERNATIVELY THE LD AR HAS SUB MITTED THAT EVEN OTHERWISE WHEN THE ASSESSEE HAS COLLECTED THE TAX AT SOURCE AND WAS DULY DEPOSITED WITH THE GOVERNMENT WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE ACT THEN THE NON-FILING OF TCS QUARTERLY STATEMENT IS ONLY DUE TO BONAFIDE AND INADVERTENT MISTAKE AS THE ASSESSEE BEING THE GOVERNMENT OFFICER WAS NOT FULLY AWARE ABOUT THE REQUIREMENT OF FILING OF TCS STATEMENTS. HENCE WHEN THE ASSESSEE HA S OTHERWISE COLLECTED THE TAX AND DEPOSITED THE SAME WITH THE GO VERNMENT THEN THE BONAFIDE MISTAKE OF THE ASSESSEE SHALL BE REGARDED AS AN EXPLANATION U/S ITA 547/JP/2018_ DISTRICT EXCISE OFFICE VS JCIT 4 273B OF THE ACT. THE LD AR HAS RELIED UPON THE DECIS ION OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL LTD. V S STATE OF ORISSA (1972) 83 ITR 26 (SC) AS WELL AS THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAJASTHAN TRIBAL AREA DE VELOPMENT COOPERATIVE FEDERATION LTD. VS ITO 60 TTJ 427 (JP TRI B) AND SUBMITTED THAT WHEN THE ASSESSEE HAS OTHERWISE COMPLIED THE STA TUTORY OBLIGATION AND NON-FILING OF QUARTERLY STATEMENT IS ONLY A TEC HNICAL DEFAULT, WHICH IS DUE TO INADVERTENT AND BONAFIDE MISTAKE THEN THE PE NALTY IS NOT LEVIABLE. 5. ON THE OTHER HAND, THE LD DR HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT DESPITE THE SUF FICIENT OPPORTUNITIES GIVEN BY THE ASSESSING OFFICER AS WELL AS THE LD. CI T(A), NONE HAS APPEARED AND RESPONDED TO THOSE NOTICES ON BEHALF O F THE ASSESSEE. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S THE RELEVANT MATERIAL ON RECORD WE NOTE THAT THE PENALTY U/S 272A (2)(K) OF THE ACT WAS LEVIED BY THE ASSESSING OFFICER DUE TO THE DEFAU LT ON THE PART OF THE ASSESSEE TO SUBMIT THE QUARTERLY STATEMENTS IN FORM NO. 27EQ AND THERE WAS A DELAY OF 452 DAYS IN SUBMITTING THE QUARTERLY STATEMENT U/S 200(3) OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESSEE CLAI MED TO HAVE SUBMITTED WRITTEN SUBMISSIONS DATED 30/11/2017 VIDE SPEED POST DATED 06/12/2017. HOWEVER, WE FIND THAT AS PER SPEED POST R ECEIPT DATED ITA 547/JP/2018_ DISTRICT EXCISE OFFICE VS JCIT 5 06/12/2017, THE ADDRESS OF THE LD. CIT(A) IS NOT COR RECTLY MENTIONED. IT APPEARS THAT THE SAID ENVELOPE CONTAINING THE WRITTE N SUBMISSIONS WAS SENT TO SOME OTHER AUTHORITY AND NOT TO THE LD. CIT( A). THE ADDRESS MENTIONED ON THE POSTAL RECEIPT IS AS INCOME TAX AA YUKT, CAD CIRCLE, KOTA WHERE THE PROPER ADDRESS OF THE CIT(A) IS CIT( APPEALS), INCOME TAX DEPARTMENT, KOTA, RAJASTHAN. THUS, THE LETTER WA S NOT ADDRESSED TO THE LD. CIT(A) BUT IT WAS ADDRESSED TO THE I.T. COMMIS SIONER, HENCE, IT APPEARS THAT THE SAID LETTER WAS NOT RECEIVED BY THE LD. CIT(A) BEFORE THE IMPUGNED ORDER WAS PASSED. THE LD. CIT(A) HAS OBSERVED THAT NO REPRESENTATION HAS BEEN MADE BY THE ASSESSEE, THE S AME IS FOUND TO BE CORRECT BUT THE MISTAKE IN THE ADDRESS IS NOT A DEL IBERATE OR WILLFUL DEFAULT FOR NON-REPRESENTATION ON BEHALF OF THE ASSESSEE BE FORE THE LD. CIT(A). THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE LD. CIT(A) FOR GRANTING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PR ESENT ITS CASE AND FURNISH EXPLANATION FOR DELAY IN SUBMITTING THE TCS STATEMENT U/S 200(3) OF THE ACT. THE LD. CIT(A) HAS TO DECIDE THE MATTER A FRESH AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE AND IN THE LIGHT OF SECTION 273B OF THE ACT. ITA 547/JP/2018_ DISTRICT EXCISE OFFICE VS JCIT 6 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 25/09/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH SEPTEMBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- DISTRICT EXCISE OFFICE, KARAULI. 2. IZR;FKHZ @ THE RESPONDENT- THE JC.I.T., RANGE TDS, UDAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 547/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR