Senior Medical Officer, Chandigarh V. JCIT (TDS), Karnal

ITA 6364/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3399 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 01-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI KANT GUPTA SENIOR
• Assessee Lawyers: ANIL ARORA CAR MS RAJNI SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE HONBLE PRESIDENT, SHRI G.D. AGRAWAL AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6363/DEL./2015 (ASSESSMENT YEAR : 2008-09) ITA NO.6364/DEL./2015 (ASSESSMENT YEAR : 2010-11) THE SENIOR MEDICAL OFFICER, VS. JCIT (TDS), MLA HOSTEL, SECTOR 3, KARNAL. CHANDIGARH. (TAN : RTKS06920E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL ARORA, CAR MS. RAJNI SHARMA, CA REVENUE BY : SHRI RAVI KANT GUPTA, SENIOR DR DATE OF HEARING : 06.02.2018 DATE OF ORDER : 19.02.2018 O R D E R PER BENCH : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING D ISPOSED OF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. 2. THE APPELLANT, THE SENIOR MEDICAL OFFICER, BY FI LING THE PRESENT APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED O RDERS BOTH DATED 30.09.2015 PASSED BY LD. CIT (APPEALS), PANCHKULA Q UA THE ITA NO.6363/DEL./2015 ITA NO.6364/DEL./2015 2 ASSESSMENT YEARS 2008-09 AND 2010-11 ON THE SIMILAR GROUNDS INTER ALIA THAT :- THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DID NOT GIVE US AN OPPORTUNITY OF BEING HEARD, WHICH AGAINST THE PRINCIPLE OF NATURAL JUSTICE. WE COULD NOT REPRESENT OUR CASE DUE TO NON- RECEIPT OF NOTICE OF HEARING WELL IN TIME TO PREPARE AND REPRESENT OUR CASE THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND THE FACTS OF THE CASE AND IS, THUS UNTENABLE. THE APPELLANT CRAVES TO ADD OR AMEND ANY GROUND OR GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : SENIOR MEDICAL OFFICER, M LA HOSTEL, HARYANA, SECTOR 3, CHANDIGARH HAS DEDUCTED AND DEPO SITED TAX DEDUCTED AT SOURCE (TDS) BUT HAS NOT FILED THE E-TD S RETURN WITH THE REVENUE DEPARTMENT WITHIN STIPULATED PERIOD. A O, AFTER INITIATED PENALTY PROCEEDINGS U/S 272(2)(K) OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) CAME TO THE CONCLUSION T HAT THE RETURN WAS ONLY FILED AFTER ISSUANCE OF THE NOTICE BY THE DEPARTMENT AND ITA NO.6363/DEL./2015 ITA NO.6364/DEL./2015 3 HELD THE PR IN DEFAULT ON ACCOUNT OF LATE FILING OF THE E-TDS AND IMPOSED THE PENALTY OF RS.1,32,100/- & RS.59,700/- ON ACCOUNT OF DELAY OF 1321 DAYS & 597 DAYS FOR AYS 2007-08 & 200 9-10 RESPECTIVELY @ RS.100/- PER DAY U/S 272(2)(K) OF TH E ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS CONFIRMED THE PENALTY BY DI SMISSING THE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY, TDS WAS DEDUCTED AND DEPOSITED BY THE ASSESSEE WITHIN TIME BUT FAILED TO FILE THE E-TDS R ETURN WITHIN STIPULATED PERIOD. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE IS A GOVERNMENT DEPARTMENT REMAINED UNREPRESENTED BEFORE THE LD. CIT (A). 6. LD. AR FOR THE ASSESSEE CONTENDED THAT THE DEPAR TMENT HAD TIMELY TRANSFERRED DATA TO THE ENGAGED FRANCHISE TO DO THE NEEDFUL FOR FILING E-TDS RETURN WHICH HAS FAILED TO COMPLY WITH THE DIRECTIONS. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVENUE TO REPEL THE ARGUMENTS ADDRESSED BY THE LD. AR FOR THE ASSESSEE BY ITA NO.6363/DEL./2015 ITA NO.6364/DEL./2015 4 RELYING UPON THE PENALTY ORDERS PASSED BY THE AO AS WELL AS CONFIRMED BY THE CIT (A) CONTENDED THAT THE ASSESSE E REMAINED NEGLIGENT BY NOT PUTTING APPEARANCE BEFORE AO AS WE LL AS LD. CIT (A) AND THE PENALTY HAS BEEN RIGHTLY IMPOSED/CONFIR MED. 7. WHEN UNDISPUTEDLY THE TDS WAS DEDUCTED AND DEPOS ITED WELL WITHIN TIME AND E-TDS RETURN WAS TO BE FILED B Y THE FRANCHISE ENGAGED BY THE GOVERNMENT DEPARTMENT, WE FIND IT A REASONABLE GROUND TO HOLD THAT THE PENALTY IMPOSED BY AO AND A FFIRMED BY CIT (A) IS NOT SUSTAINABLE. MOREOSO, THERE IS NO L OSS OF TAX TO THE STATE EXCHEQUER BUT A MERE LAPSE ON THE PART OF THE SENIOR MEDICAL OFFICER, A DOCTOR, WHO IS OTHERWISE NOT A TAX EXPER T KNOWING INTRICACIES OF PENAL PROVISIONS. 8. SO, IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE HEREBY DELETE THE PENALTY OF RS.1,32,100/- & RS.59,700/- F OR AYS 2007-08 & 2009-10 RESPECTIVELY IMPOSED BY THE AO AND AFFIRM ED BY THE LD. CIT (A). CONSEQUENTLY, BOTH THE APPEALS FILED BY T HE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF FEBRUARY, 2018. SD/- SD/- (G.D. AGRAWAL) (KULDIP SINGH) PRESIDENT JUDICIAL MEMBE R DATED THE 19 TH DAY OF FEBRUARY, 2018 TS ITA NO.6363/DEL./2015 ITA NO.6364/DEL./2015 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-30, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.