M/S MAHAVIR WOOLLEN INDUSTRIES, JALANDHAR V. INCOME TAX OFFICER, (TDS), JALANDHAR

ITA 555/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7120 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 28-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKAR
• Assessee Lawyers: J S BHASIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.555/ASR./2017 : ASSTT. YEAR : 2013-14 M/S MAHAVIR WOOLLEN INDUSTRIES, BAZAR PIR BODLAN, JALANDHAR VS INCOME TAX OFFICER(TDS), JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. ACLPJ1215H ASSESSEE BY : SH. J. S. BHASIN, ADV. REVENUE BY : SH. BHAWAN I SHANKAR, DR DATE OF HEARING : 07.01.2019 DATE OF PRONOUNCEMENT : 10.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.05.2017 OF LD. CIT(A)-2,JALANDHAR. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF PENALTY OF RS.68,633/- MADE BY THE AO U/S 234E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE AO CREAT ED A DEMAND OF RS.68,633/- U/S 234E OF THE ACT ON THE BASIS OF INT IMATION RECEIVED FOR LATE FILING OF RETURN IN FORM NO. 26Q. THE DEMA ND CREATED WAS EQUAL TO THE AMOUNT OF TAX DEDUCTED AT SOURCE. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE RETURN FOR 4 TH QUARTER WAS DUE FOR ITA NO. 555/ASR./2017 HARPAL SING H 2 FILING ON OR BEFORE 15.05.2013 AND THE ASSESSEE FIL ED THE RETURN ON THE SAID DATE AS PER RECEIPT NO. 070210100254302 IS SUED BY THE PERSON AUTHORIZED WHICH WAS HAVING ALL THE RELEVANT DETAILS IN RESPECT OF TAX DEDUCTED AND DEPOSITED AMOUNTING TO RS.68,633/-. IT WAS FURTHER STATED THAT AS PER THE SAID RECEIPT, TH E ASSESSEE HAD ALSO PAID RS.31/- AS UPLOADING FEES INCLUSIVE OF SERVICE TAX AND THAT THE SUB-SECTION (3) OF SECTION 200 R.W. RULE 31A(1), DI D NOT MANDATE ANYTHING MORE TO BE DONE, BEYOND THE DELIVERY OF TH E STATEMENT TO THE PERSON AUTHORIZED AND IF AFTER THE DELIVERY OF STATEMENT, THE RETURN WAS NOT PROCESSED OR FOR ANY OTHER REASON, T HE CREDIT OF TDS WAS NOT GIVEN TO THE DEDUCTEES, THE PROVISION OF SE CTION 234E OF THE ACT WILL NOT COME INTO PLAY. IT WAS FURTHER SUB MITTED THAT WHEN THE DEDUCTEES CONCERNED APPROACHED THE ASSESSEE COM PLAINING THAT THEY DID NOT GET CREDIT FOR TAX DEDUCTED AT SOURCE BY THE ASSESSEE, PROBABLY BECAUSE THE ABOVE RETURN FILED BY THE ASSE SSEE HAD NOT REACHED THE TIN CENTRE. THEREAFTER, THE ASSESSEE SI MPLY TO HELP THE DEDUCTEES AGAIN FILED THE SAME STATEMENT ON 19.09.2 015 WHICH HAD BEEN FILED EARLIER ON 15.05.2013. THEREFORE, BY ANY RECKONING, THE ASSESSEE HAD BEEN SUBJECTED TO LEVY OF PENALTY WITH OUT ANY FAULT, SIMPLY AS A SEQUEL TO MECHANICAL WORKING TO THE SYS TEM, WHICH HAS TO BE HELD AS BAD. THE LD. CIT(A), HOWEVER, DID NOT FIND MERIT IN THE SUBMISSION OF THE ASSESSEE AND SUSTAINED THE PE NALTY LEVIED BY THE AO BY OBSERVING IN PARAS 4.2 TO 4.4 AS UNDER: 4.2 I HAVE GONE THROUGH THE ORDER PASSED BY THE ACIT,CPC-TDS AND SUBMISSIONS MADE BY THE AR OF THE APPELLANT IN THIS REGARD AND FIND THAT A DEMAND OF RS. 68,630 HAS BEEN CREATED ON ACCOUNT OF LATE FILING F EE U/S 234E OF THE IT ACT. THE APPELLANT HAS STATED THAT T DS RETURN FOR THE 4 TH QUARTER WAS DUE FOR FILING IN FORM NO. ITA NO. 555/ASR./2017 HARPAL SING H 3 26Q ON OR BEFORE 15 TH , MAY 2013. IT IS SUBMITTED THAT TDS RETURN IN FORM NO. 26Q FOR THE 4 TH QUARTER WAS FILED ON 15.05.2013 AND HAS ALSO ENCLOSED AN EVIDENCE TO THI S EFFECT. THE APPELLANT HAS STATED THAT AN UPLOADING FEE OF RS. 31 INCLUSIVE OF SERVICE TAX WAS ALSO PAID WHILE FILING THE TDS RETURN IN MAY, 2013. HOWEVER, DEDUCTEES APPROACHED THE APPELLANT AND COMPLAINED THAT NO CRE DIT FOR TDS HAS BEEN OBTAINED BY THEM BECAUSE THE RETUR N FILED BY THE APPELLANT HAS NOT REACHED THE TIN CENT RE. THEREFORE, AGAIN A RETURN OF TDS WAS FILED ON 19.09.2015, WHICH WAS PROCESSED ON 24.09.2015 VIDE INTIMATION U/S 200A OF THE IT ACT. 4.3 THE APPELLANT HAS FURTHER STATED THAT NO LATE F EE U/S 234E OF THE IT ACT COULD BE IMPOSED IN THIS CASE AS THE PROVISO TO SECTION 200A(1) NO INTIMATION U/S 200A C OULD BE SENT AFTER THE EXPIRY OF 1 YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE STATEMENT WAS FILED. IT IS ALSO STATED THAT NO FEE U/S 234E COULD BE IMPOSED PRIOR TO THE AMENDMENT BY THE FINANCE ACT 2015 I.E. W.E.F. 01.06.2015. THE APPELLANT HAS ALSO PLACED ON RECORD A DECISION OF HONBLE ITAT AMRITSAR BENCH IN THE CASE OF SIBIA HEALTH CARE PVT. LTD. VS DCIT. 4.4 HAVING CONSIDERED THE MATERIAL AVAILABLE ON REC ORD, I FIND THAT AS PER THE DATA BASE OF TDS RETURNS OF TH E INCOME TAX DEPARTMENT NO RETURN OF TDS WAS FILED BY THE APPELLANT AND THEREFORE, NO CREDIT COULD BE AVA ILED BY ANY O THE DEDUCTEES ON ACCOUNT OF DEDUCTION O TAX M ADE BY THE APPELLANT. THEREFORE, TDS RETURN FILED BY TH E APPELLANT ON 19.09.2015 HAS BEEN PROCESSED ON 24.09.2015 WHICH IS MUCH AFTER THE INSERTION OF THE PROVISIONS BY THE FINANCE ACT, 2015. I HAVE ALSO GO NE THROUGH THE COPY OF THE STATEMENT OF TDS WHICH WAS STATED TO HAVE BEEN FILED IN TIME I.E. ON 15.05.201 3 AND FIND THAT IT IS STATED THEREON THAT THIS RECEIPT IS VALID ONLY IF THE TDS STATEMENT IS ACCEPTED AT THE TIN CENTRAL SYSTEM. THIS FACT COULD ALSO BE VERIFIED BY THE APP ELLANT HIMSELF AND THEREFORE, I DO NOT FIND ANY FORCE IN T HE ITA NO. 555/ASR./2017 HARPAL SING H 4 CONTENTIONS OF THE APPELLANT THAT TDS RETURN WAS FI LED WELL IN TIME. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL F OR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW A ND FURTHER SUBMITTED THAT THE ASSESSEE FILED THE RETURN IN FORM NO. 26Q IN DU E TIME AND THERE WAS NO DELAY. A REFERENCE WAS MADE TO PAGE NO. 5 OF THE AS SESSEES PAPER BOOK WHICH IS THE COPY O ACKNOWLEDGMENT OF THE RETURN FILED ON 15.05.2013. IT WAS CONTENDED THAT IF THERE WAS FAILURE OF SYSTEM OF TH E DEPARTMENT, THE ASSESSEE SHOULD NOT BE PANELIZED PARTICULARLY WHEN THE TAX D EDUCTED WAS DEPOSITED WITHIN THE TIME ALLOWABLE. 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS NOTICED THAT THE ASSESSEE DEDUCTED A SUM OF RS.68,633/- AS TDS U/S 1 94A OF THE ACT WHICH WAS DEPOSITED ON 26.04.2013 VIDE CHALLAN NO. 00373 WHIC H IS EVIDENT FROM PAGE NOS. 7 & 8 OF THE ASSESSEES PAPER BOOK. THE ASSESS EE ALSO FURNISHED THE RETURN IN FROM NO. 26Q FOR THE 4 TH QUARTER ON 15.05.2013. HOWEVER, THE SAID RETURN HAD NOT REACHED THE TIN CENTRE. THE ASSESSEE SUBSEQ UENTLY FILED ANOTHER RETURN ON 19.09.2015 DISCLOSING THE SAME FIGURES WHICH WER E ALREADY FURNISHED VIDE RETURN DATED 15.05.2013. IN OUR OPINION, THE ASSESS EE WAS NOT LIABLE TO BE PANELIZED WHEN IT HAD ALREADY DEPOSITED THE TAX DED UCTED AT SOURCE AND ALSO FURNISHED RETURN IN FORM NO. 26Q WITHIN THE ALLOWAB LE TIME AND IN CASE THE SAID RETURN DID NOT REACH THE TIN CENTRE, IT WAS NO T FAULT OF THE ASSESSEE. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, D ELETE THE IMPUGNED PENALTY U/S 234E OF THE ACT LEVIED BY THE AO AND SUSTAINED BY T HE LD. CIT(A). ITA NO. 555/ASR./2017 HARPAL SING H 5 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. (ORDER PRONOUNCED IN THE COURT ON 10/01/2019) (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 10/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR