Navpreet Singh Bhasin, Chandigarh V. JCIT (TDS), Chandigarh

ITA 66/CHANDI/2015

• Counselvise Citation: 6621514 RSA 2015
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-08-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: S K BHASIN
• Keywords: Period of limitation; Reasonable cause; Bonafide mistake

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NOS. 66, 65 & 67/CHD/2015 ASSESSMENT YEAR: 2011-12 SHRI NAVPREET SINGH BHASIN, VS THE JCIT (TDS), HOUSE NO. 3363, CHANDIGARH. SECTOR 33, CHANDIGARH. PAN: APTPS4387N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. BHASIN RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 17.08.2015 DATE OF PRONOUNCEMENT : 19.08.2015 O R D E R PER BHAVNESH SAINI,JM ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST TH E COMMON ORDER OF LD. CIT(APPEALS) CHANDIGARH DATED 03.07.2013 FOR FINANCIAL YEAR 2010-11 (ASSESSMENT Y EAR 2011-12), CHALLENGING THE LEVY OF PENALTY UNDER SEC TION 272A(2)(K) OF THE INCOME TAX ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE PERSON RESPONSIBLE HAD FAILED TO FILE QUARTERLY TDS RETURN S BY DUE DATE. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE FOR FILING TDS RETURNS BELATEDLY 2 AND LEVIED THE PENALTY UNDER SECTION 272A(2)(K) OF THE ACT FOR ALL FOUR QUARTERS. DURING THE APPELLATE PROCEE DINGS, THE ASSESSEE MAINLY STATED THAT THERE IS NO LOSS TO THE REVENUE ON ACCOUNT OF DELAY IN FILING QUARTERLY TDS RETURNS . IT HAS ALSO BEEN SUBMITTED THAT ASSESSEE COULD NOT HAVE FI LED THE TDS RETURNS WITHOUT DEPOSIT OF TDS WHICH WAS MADE O N 30.03.2011. THE ORDER OF ITAT MUMBAI BENCH IN THE CASE OF M/S PORWAL CREATIVE VISION (P) LTD. DATED 18.03.201 1 WAS RELIED UPON. THE LD. CIT(APPEALS) CONSIDERING THE RELEVANT PROVISIONS OF LAW IN THE LIGHT OF THE SUBMISSIONS O F THE ASSESSEE, DISMISSED THE APPEAL OF THE ASSESSEE. TH E FINDINGS OF LD. CIT(APPEALS) IN PARA 5 TO 5.3 OF TH E APPELLATE ORDER ARE REPRODUCED AS UNDER : 5. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLA NT. FOR THE SAKE OF READY REFERENCE, THE PROVISIONS OF SECT ION 200(3) ARE REPRODUCED BELOW. '200. DUTY OF PERSON DEDUCTING TAX.. (3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1ST DAY OF APRIL, 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CHAPTER OR, AS THE CASE MAY BE, ANY PERSON BEING AN EMPLOYER REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 SHALL, AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVER NMENT WITHIN THE PRESCRIBED TIME, PREPARE SUCH STATEMENTS FOR SU CH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVE RED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSON AUTHORIS ED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED I N SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHI N SUCH TIME AS MAY BE PRESCRIBED.' '31 A. STATEMENT OF DEDUCTION OF TAX UNDER SUB-SECTION (3) OF SECTION 200. (2) STATEMENTS REFERRED TO IN SUB-RULE (1) FOR THE Q UARTER OF THE FINANCIAL YEAR ENDING WITH THE DATE SPECIFIED IN COLUMN (2) OF THE TABLE BELOW SHALL BE FURNISHED BY THE DUE DATE SPECIFIED IN THE CORRESPONDING ENTRY IN COL UMN (3) OF THE SAID TABLE: 3 1. DATE OF ENDING OF THE QUARTER - 30TH JUNE - DUE DATE OF THE FINANCIAL YEAR - 15TH JULY OF THE FINANCIAL YEAR 2. DATE OF ENDING OF THE QUARTER - 30TH SEPTEMBER - DUE DATE OF THE FINANCIAL YEAR - 15TH OCTOBER OF THE FINANCIAL YEAR 3. DATE OF ENDING OF THE QUARTER -31ST DECEMBER - DUE DATE OF THE FINANCIAL YEAR - 15TH JANUARY OF THE FINANCIAL YEAR 4. DATE OF ENDING OF THE QUARTER 31ST MARCH - DUE DATE OF THE FINANCIAL YEAR 15TH MAY OF THE FINANCIAL YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH DEDUCTION IS MADE. ' 5.2 THUS, TDS RETURNS HAVE TO BE FILED IN FOR M NO. 26Q BY THE DUE DATES MENTIONED IN RULE 31A(2). THE APPELLANT H AS NOT FILED TDS RETURNS BY DUE DATES AS PRESCRIBED BY THE RULE. 5.3 THE APPELLANT HAS CONTENDED THAT THERE IS N O LOSS TO THE REVENUE, BUT THIS IS NOT RELEVANT FOR THE PURPOSES OF LEVY OF PENALTY U/S 272A(2)(K) OF THE ACT. THE PR WAS SUPPO SED TO MANDATORILY FILE TDS RETURNS WITHIN THE PRESCRIBED TIME, AS PROVIDED IN RULE 31(2). AS THE PR HAS FAILED TO DO SO, THE PR HAS RIGHTLY BEEN TREATED AS 'ASSESSEE IN DEFAULT' FOR N OT FILING TDS RETURNS WITHIN PRESCRIBED PERIOD. THE EXPLANATION O F THE APPELLANT FOR LATE FILING OF TDS RETURNS IS THAT THE TAX WAS DEPOSITED TO THE GOVERNMENT TREASURY AFTER THE DUE DATE. THE APPELLANT HAS RELIED UPON THE DECISION OF HONBLE I TAT, MUMBAI IN THE CASE OF M/S PORWAL CREATIVE (P) LTD. (SUPRA) AND HAS SUBMITTED THAT THE PENALTY U/S 272A(2)(K) SHOULD BE COMPUTED FROM THE DATE OF DEPOSIT OF TAX TO THE GOVERNMENT T REASURY BUT IN THAT CASE THE ASSESSEE HAD EXPLAINED THE REASON FOR NOT PAYING THE TDS TO THE CENTRAL GOVERNMENT IN TIME. IN THE I NSTANT CASE, THE APPELLANT HAS NOT EXPLAINED AS TO WHY HE COULD NOT PAY THE TDS TO THE GOVERNMENT IN TIME AND SO THE RATIO OF T HE DECISION OF HON'BLE ITAT, MUMBAI DOES NOT APPLY TO THE CASE OF T HE APPELLANT. THE PENALTY U/S 272A(2)(K) HAS RIGHTLY B EEN IMPOSED ON THE PR AND THE SAME IS UPHELD. GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE DISMISSED. 4 3. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED THE MATERIAL ON RECORD. 4. ALL THE APPEALS ARE FILED IN THE OFFICE OF THE T RIBUNAL ON 15.01.2015. ACCORDING TO THE OFFICE, ALL THE APPEA LS ARE TIME BARRED BY 463 DAYS BECAUSE THE IMPUGNED ORDER WAS SERVED UPON ASSESSEE ON 10.08.2013 AS PER FORM NO. 36 OF THE APPEAL PAPERS. 5. THE ASSESSEE FILED APPLICATION FOR CONDONATION O F DELAY IN ALL THE APPEALS. IT IS STATED THAT THE ASSESSEE FILED A CONSOLIDATED APPEAL AGAINST THE IMPUGNED ORDER DATE D 03.07.2013. SINCE THE ASSESSING OFFICER PASSED THE PENALTY ORDER FOR ALL THE FOUR QUARTERS, THEREFORE, ASSESSE E WAS REQUIRED TO FILE SEPARATE FOUR APPEALS. THE LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE LD. CIT(APPEALS) DECIDED THE APPEAL THROUGH CONSOLIDATED ORDER FOR ALL THE F OUR QUARTERS, THEREFORE, IT WAS A TECHNICAL DELAY AND W HEN THE ASSESSEE REALIZED THE MISTAKE, FILE THE PRESENT THR EE APPEALS SEPARATELY. IT IS STATED THAT THE EARLIER APPEAL O F THE ASSESSEE IN ITA 986/2013 IS PENDING FOR DISPOSAL, T HEREFORE, ON THE LAST DATE OF HEARING IT WAS DIRECTED TO FIX ALL THE THREE APPEALS ALONGWITH APPEAL OF THE ASSESSEE IN I TA 986/2013. THE OFFICE INTIMATED THAT THE APPEAL OF THE ASSESSEE IN ITA 986/2013 HAS BEEN DISMISSED FOR DEF AULT VIDE ORDER DATED 18.02.2015. COPY OF THE ORDER IS ALSO PLACED ON RECORD. 5 6. CONSIDERING THE EXPLANATION OF THE ASSESSEE IN T HE LIGHT OF THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VI EW THAT ASSESSEE HAS BEEN ABLE TO EXPLAIN THE DELAY IN FILI NG THE APPEALS BEYOND THE PERIOD OF LIMITATION. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE WHEN ASSESSEE FILED ON LY ONE APPEAL AGAINST THE IMPUGNED ORDER IN ITA 986/2013, ASSESSEE WAS IN BONAFIDE MISTAKE FOR FILING ONE APP EAL BECAUSE LD. CIT(APPEALS) DECIDED THE APPEAL FOR ALL THE FOUR QUARTERS TOGETHER. THEREFORE, THE EXPLANATION OF T HE ASSESSEE IS BONAFIDE IN NOT FILING APPEALS SEPARATE LY, THEREFORE, DELAY IN FILING THESE APPEALS IS ACCORDI NGLY CONDONED. 7. THE LD. COUNSEL FOR THE ASSESSEE ON MERITS SUBMI TTED THAT SINCE ASSESSEE WAS SHORT OF THE FUNDS, THEREFO RE, TAX (TDS) WAS NOT DEPOSITED ON TIME AND FURTHER DUE TO THE ACCOUNTS COULD NOT BE FINALIZED, THE TDS RETURNS CO ULD NOT BE FILED ON TIME. 8. ON THE OTHER HAND, LD. DR SUBMITTED THAT WHATEVE R CONTENTIONS ARE RAISED BY THE ASSESSEE, HAVE NOT BE EN PROVED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD A ND ASSESSEE HAS FAILED TO EXPLAIN ANY REASONABLE CAUSE FOR FAILURE TO COMPLY WITH PROVISIONS OF LAW, THEREFORE , PENALTY WAS CORRECTLY LEVIED AGAINST THE ASSESSEE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS FAILED TO FILE QUARTE RLY TDS RETURNS BY DUE DATE. THE ASSESSEE SUBMITTED BEFORE 6 ASSESSING OFFICER AT THE PENALTY STAGE THAT TAXES ( TDS) HAVE BEEN DEPOSITED ON 30.03.2011 AND THERE IS NO LOSS T O THE REVENUE. FURTHER, WHEN ACCOUNTS COULD NOT BE COMPL ETED, TDS RETURNS ARE NOT FILED WITHIN TIME. HOWEVER, AL L THESE CONTENTIONS HAVE NOT BEEN PROVED THROUGH ANY EVIDEN CE OR MATERIAL ON RECORD. THE ASSESSEE CONTENDED THAT TH ERE WAS NO LOSS TO THE REVENUE, THEREFORE, PENALTY SHOULD N OT BE IMPOSED. THIS REASON IS IRRELEVANT FOR THE PURPOSE OF LEVY OF THE PENALTY UNDER THE ABOVE PROVISIONS. THE ASSESS EE IS SUPPOSED TO FILE E-TDS RETURNS MANDATORILY WITHIN T HE PRESCRIBED TIME AS PER THE RULES AND THE LOSS TO TH E REVENUE IS NOT RELEVANT CRITERIA FOR NOT FILING TDS RETURNS WITHIN TIME. THE ASSESSEE HAS ALSO NOT RAISED THE ISSUE O F NON AVAILABILITY OF THE FUNDS BEFORE THE AUTHORITIES BE LOW AND WHATEVER CONTENTION WAS RAISED, WAS NOT SUPPORTED B Y ANY EVIDENCE OR MATERIAL ON RECORD. THE ASSESSEE HAS A LSO NOT EXPLAINED ANY REASON FOR NOT PAYING THE TDS TO THE CENTRAL GOVERNMENT IN TIME. THE ASSESSEE HAS ALSO NOT EXPL AINED AS TO WHY HE COULD NOT PAY THE TDS TO THE CENTRAL GOVE RNMENT ON TIME. THE FINALIZATION OF THE ACCOUNTS HAS NO R ELEVANCE IN FILING OF THE TDS RETURNS WITHIN THE PERIOD OF L IMITATION. THE ASSESSEE IN ORDER TO ESCAPE FROM LIABILITY OF T HE PENALTY SHALL HAVE TO PROVE THAT HE HAS REASONABLE CAUSE FO R FAILURE TO COMPLY WITH PROVISIONS OF LAW. HOWEVER, IN THIS CASE ASSESSEE HAS FAILED TO EXPLAIN ANY REASONABLE CAUSE FOR FAILURE TO COMPLY WITH PROVISIONS OF LAW. FURTHER, WHATEVER CONTENTION WAS RAISED NOW, HAVE NOT BEEN PROVED OR SUPPORTED BY ANY EVIDENCE OR MATERIAL ON RECORD. T HEREFORE, 7 WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW IN LEVYING AND CONFIRMING THE PENALTY AGAINST THE ASSESSEE. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST,2015. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAIN I) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH AUGUST,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH