Indian Society of Heating Refrigeration & Air Conditioning Engineers, New Delhi V. JCIT (TDS), New Delhi

ITA 6006/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4894 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 04-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER. ITA NO. 6006/DEL/2015 [A.Y. 2010-11] INDIAN SOCIETY OF HEATING REFRIGERATION & VS. THE JCIT[TDS] AIR CONDITIONING ENGINEERS RANGE - 50 K 43, BASEMENT, KAILASH COLONY NEW DELHI NEW DELHI PAN : AAATI 10241 H [APPELLANT] [RESPONDENT] DATE OF HEARING : 29.08.2017 DATE OF PRONOUNCEMENT : 30.08.2017 ASSESSEE BY : SHRI RAJ KUMAR G UPTA, CA SHRI SHIVAM GUPTA, CA REVENUE BY : SHRI ARUN KUMAR YADAV, SR.DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD. CIT(A)-XXXV, NEW DELHI VIDE ORDER DATED 10.10.2015 FOR ASSESSMENT YEAR 2010-11 RELEVANT TO F.Y. 2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, LD. C IT (A) GROSSLY ERRED IN LAW AS WELL AS ON FACTS IN NOT CON DONING THE SMALL DELAY IN FILING THE APPEAL. - 2- ITA NO. 6006/DEL/2015 2. THAT UNDER THE FACTS AND CIRCUMSTANCES, LD. CIT (A) AGAIN ERRED IN LAW IN DISMISSING THE APPEAL ON THE GROUND OF NON - APPEARANCE AND NOT DECIDING THE SAME ON MERITS. 3.1 THAT UNDER THE FACTS AND CIRCUMSTANCES, THE OR DER U/S. 272 A (2)(K) IMPOSING PENALTY OF RS.4,97,600/- FOR DELAY IN FILLING QUARTERLY TDS RETURNS IN FORM 24 Q AND 26 Q @ RS. 1 00/- PER DAY FOR ALLEGED DELAY OF 4976 DAYS IS ABSOLUTELY ILLEGA L AND UNJUSTIFIED IN LAW AS WELL AS ON MERITS. 3.2 THAT, SINCE, THE PENALTY CANNOT BE MORE TH AN TDS AMOUNT AND THERE WAS NO TDS LIABILITY FOR 1 ST & 2 ND QUARTER FOR FORM NO. 24 Q (SALARY), THEREFORE, THERE WAS NO LIABILITY TO FILE THE TDS RETURN AND ALSO IN ANY CASE, SINCE, THE PENALTY CAN NOT BE IN EXCESS OF TDS AMOUNT WHICH IS ZERO FOR THESE TWO QUARTERS, HENCE, THE AO GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN IMPOSING PENALTIES OF RS. 1,34,500/- AND RS. 1,25,3 00/- FOR THESE TWO QUARTERS. 3.3 THAT, SINCE, THE PENALTY CANNOT BE MORE THAN T DS AMOUNT AND THERE WAS NO TDS LIABILITY FOR 2 ND & 4 TH QUARTER FOR FORM NO. 26 Q (NON - SALARY), THEREFORE, THERE WAS NO LIABIL ITY TO FILE THE TDS RETURN AND ALSO IN ANY CASE, SINCE, THE PENALTY CANNOT BE IN EXCESS OF TDS AMOUNT WHICH IS ZERO FOR THESE TWO QUARTERS, HENCE, THE AO GROSSLY ERRED IN LAW AS WELL AS ON MERITS IN IMPOSING PENALTIES OF RS. 1,25,300/- AND RS. 1,01,0 00/- FOR THESE TWO QUARTERS. - 3- ITA NO. 6006/DEL/2015 3.4 THAT FOR FORM NO. 26 Q (NON - SALARY), FOR THE 1 ST QUARTER, SINCE THE TDS AMOUNT IS ONLY RS.549/-, THEREFORE, E VEN ON HOLDING THAT THE ASSESSEE HAS COMMITTED THE DEFAULT IN THE SAID SECTION, THE PENALTY AMOUNT CANNOT EXCEED RS. 549/- , HENCE, PENALTY OF RS. 9,000/- IMPOSED IS ILLEGAL AND EXCES SIVE. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO PROPER A ND REASONABLE OPPORTUNITY OF HEARING HAS BEEN ALLOWED BY BOTH THE LOWER AUTHORITIES AND UNDER THE FACTS CIT (A) FURTHER. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WA S SUPPOSED TO FILE APPEAL BEFORE THE LD. CIT(A) UPTO 29.04.2013 WHICH WAS FILED, IN FACT, ON 21.05.2013 BY A DELAY OF 21 DAYS. APPLICATION F OR CONDONATION OF DELAY ALONGWITH AFFIDAVIT OF THE CHARTERED ACCOUNTA NT WAS FILED BEFORE THE LD. CIT(A) FOR CONDONING THE DELAY. HOWEVER, T HE LD. CIT(A) DID NOT CONDONE THE DELAY. 4. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE AFFIDAVIT FILED BY SHRI SUNIL GUPTA AND APPLICATION FOR CONDONATION OF DELAY AND PRAYED TO GIVE DIRECTIONS TO THE LD. CIT(A) FOR CONDONATIO N OF DELAY AND HEAR THE APPEAL ON MERIT. 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE LD. CIT(A). - 4- ITA NO. 6006/DEL/2015 6. WE HAVE HEARD THE PARTIES AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSE E HAS FILED AN APPLICATION FOR CONDONATION OF DELAY BEFORE THE LD. CIT(A) ALONGWITH AN AFFIDAVIT OF THE CHARTERED ACCOUNTANT SHRI SUNIL GU PTA. DELAY HAS OCCURRED ON THE PART OF THE CHARTERED ACCOUNTANT SH RI SUNIL GUPTA IN FILING APPEALS. THOUGH THE ASSESSEE HAD HANDED OVE R ALL NECESSARY PAPERS FOR FILING THE APPEAL IN TIME TO THE CHARTER ED ACCOUNTANT, WHICH, IN FACT, WERE WRONGLY PLACED IN THE WRONG FI LE AND WHEN TRACED, THE APPEAL WAS FILED. WE, ACCORDINGLY, FIND A SUFF ICIENT CAUSE IN FILING THE APPEAL LATE BY 21 DAYS BEFORE THE LD. CIT(A) AN D ACCORDINGLY DIRECT THE LD. CIT(A) TO CONDONE THE SAID DELAY AND DECIDE THE ISSUE ON MERITS BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, GROUND NOS. 1 AND 2 OF THE ASSESSEE ARE ALLOW ED. 7. AS REGARDS THE OTHER GROUNDS OF APPEAL ON MERIT, THE SAME ARE NOT DECIDED SINCE THE ISSUE REMAINED TO BE DECIDED ON MERIT BY THE LD. CIT(A) FOR WHICH NECESSARY DIRECTIONS HAVE BEEN GIV EN. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE PA RTLY ALLOWED. - 5- ITA NO. 6006/DEL/2015 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.08 .2017. SD/- SD/- [KULDIP SINGH] [B.P. JAIN] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH AUGUST, 2017 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI