Baba Budha Sahib Cardiac Centre Ltd., Jalandhar V. The Joint Commissioner of Income Tax,(TDS), Ludhiana

ITA 665/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9639 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN , JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NOS.665 & 666(ASR)/2015 ASSESSMENT YEARS: 2011-12 & 2012-13 M/S BABA BUDHA SAHIB CARDIAC CENTRE LTD. 301, LAJPAT NAGAR, JALANDHAR. PAN:JLDB00982C VS. JT. CIT (TDS) RISHI NAGAR, LUDHIANA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. GUNJEET SINGH SYAL (ADV.) RESPONDENT BY: SH. A.N. MISRA (DR.) DATE OF HEARING: 24.06.2016 DATE OF PRONO UNCEMENT: 09.08.2016 ORDER PER T. S. KAPOOR (AM): THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T THE SEPARATE ORDERS OF LEARNED CIT(A), JALANDHAR, BOTH DATED 29. 10.2015 FOR ASST. YEARS:2011-12 & 2012-13 RESPECTIVELY. 2. THE BRIEF FACTS OF THE CASE AS NOTED IN THE PENA LTY ORDER PASSED U/S 272A(2)(G) OF THE ACT., ARE THAT A SHOW CAUSE NOTIC ES U/S 272A(2)(G) DATED 20.05.2013 & 04.06.2013 WERE ISSUED AND SERVED UPON PERSONS RESPONSIBLE TO EXPLAIN AS TO WHY PENALTY U/S 272A(2 )(G) OF THE I.T. ACT MAY NOT BE IMPOSED FOR NOT ISSUING CERTIFICATE OF D EDUCTION OF TDS IN FORM NO.16A TO DR. ASHOK JAYANT AS REQUIRED U/S 203 OF THE ACT. ITA NOS.665 & 666 (ASR)/2015 ASST. YEARS: 2011-12 & 2012-1 3 2 3. IN REPLY THE ASSESSEE SUBMITTED THAT CERTIFICATE IN FORM NO.16A FOR THE ABOVE TWO YEARS WERE ISSUED BY THE ASSESSEE WEL L WITHIN TIME AND IN THIS RESPECT ENCLOSED A COPY FOR FORM NO.16A ALONG WITH VOUCHERS SHOWING PURCHASE OF POSTAGE STAMP TO SUPPORT THAT T HESE FORMS WERE DISPATCHED. IT WAS ALSO SUBMITTED THAT SAID FORM NO .16A WERE DISPATCHED ALONG WITH CHEQUES PAYABLE TO DR. ASHOK JAYANT, WHO THOUGH HAD CONFIRMED TO HAVE RECEIVED CHEQUES AND HAD DEPO SITED THE SAME IN BANK ACCOUNT BUT REFUSED TO HAVE RECEIVED FORM NO.1 6A. IT WAS ALSO SUBMITTED THAT A SURVEY BY ITO, (TDS) WAS CONDUCTED ON THE ASSESSEE ON 10.01.2012 AND DURING THE SURVEY, THE ITO, (TDS) DI D NOT OBSERVE THIS KIND OF DEFAULT. IT WAS FURTHER SUBMITTED THAT DUE TO DISPUTES OF MANAGEMENT WITH DR. ASHOK JAYANT, HE WAS PRESSURING AND MAKING COMPLAINTS TO EXTRACT MONEY FROM THE ASSESSEE. HOWE VER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION, THE REFORE, HE IMPOSED THE PENALTY OF RS.2,05,600/- FOR THE DEFAULT IN FURNISH ING FORM NO.16A IN THE TWO FINANCIAL YEARS. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE LEARN ED CIT(A) AND REITERATED ITS SUBMISSIONS, HOWEVER, THE LEARNED CI T(A) ALSO CONFIRMED THE ACTION OF ASSESSING OFFICER. 5. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE OUTSET, THE LEARNED AR FILED DULY SWORN A FFIDAVIT SIGNED BY SENIOR ACCOUNTS MANAGER WITH THE ASSESSEE WHEREIN H E HAS STATED ITA NOS.665 & 666 (ASR)/2015 ASST. YEARS: 2011-12 & 2012-1 3 3 UNDER OATH THAT THE SAID FORM NO.16A WERE DISPATCHE D WELL WITHIN TIME. THE LEARNED AR SUBMITTED THAT UNDER RULE-10 OF THE ITAT RULES, THE AFFIDAVIT BY ASSESSEE MAY BE TAKEN ON RECORD. THE L EARNED AR SUBMITTED THAT ASSESSEE HAD DULY DEDUCTED TAX AND HAD DULY DE POSITED THE SAME WITH THE GOVT. AND HAD DULY ISSUED FORM NO.16A WITH IN PRESCRIBED PERIOD OF TIME AND THE SAID FORMS WERE SENT BY ORDI NARY POST. THE EVIDENCE FOR PURCHASE OF POSTAGE STAMP WAS PLACED A LONG WITH THE PERSONS FOR WHOM THE SAID POSTAGE STAMPS WERE USED WAS PLACED IN (PB PAGE 21 TO 26). THE LEARNED AR FURTHER SUBMITTED TH AT THE SAID DR. ASHOK JAYANT WAS JUST HARASSING THE ASSESSEE AS HE IS DEN YING THE RECEIPT OF FORM NO.16A WHEREAS HE HAS ALREADY DEPOSITED THE CH EQUES WHICH WERE ALSO SENT ALONG WITH SAID FORMS THROUGH ORDINARY PO ST. THE LEARNED AR FURTHER SUBMITTED THAT THE INFORMATION REGARDING TD S WAS ALSO AVAILABLE ON THE WEBSITE OF INCOME TAX DEPARTMENT IN THE FORM OF 26AS. 7. WITHOUT PREJUDICE IT WAS SUBMITTED THAT THERE WA S NO LOSS TO ASSESSEE NOR TO GOVT. AS IT IS AN UNDISPUTED FACT T HAT TAXES WERE PROPERLY DEDUCTED AND WERE DEPOSITED WELL IN TIME. 8. THE LEARNED AR, IN THIS RESPECT RELIED UPON THE CASE LAW DECIDED BY SUPREME COURT IN THE CASE OF HINDUSTANT STEELS LTD. VS. CIT (1972) 83 ITGR 26, FOR THE PROPOSITION THAT PENALTY SHOULD NO T BE IMPOSED WHERE THE PARTY DID NOT ACT DELIBERATELY IN DEFIANCE OF L AW. THE LEARNED AR FURTHER RELIED UPON THE CASE LAW OF M/S. HARDIDDH C ONSTRUCTION PVT. LTD. ITA NOS.665 & 666 (ASR)/2015 ASST. YEARS: 2011-12 & 2012-1 3 4 VS. CIT 244 ITR 417 (GUJ) DECIDED BY GUJRAT HIGH CO URT, WHEREIN THE HONBLE HIGH COURT UNDER SIMILAR FACTS AND CIRCUMST ANCES HAD DELETED THE PENALTY. IN VIEW OF THE ABOVE, IT WAS PRAYED TH AT THE PENALTY CONFIRMED BY LEARNED CIT(A) BE DELETED. 9. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE AUTHORITIES BELOW. 10. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UN DISPUTED FACT THAT ASSESSEE HAD DULY DEPOSITED THE TDS WITHIN THE PRES CRIBED PERIOD OF TIME AND FURTHER THE INFORMATION REGARDING SUCH DEDUCTIO N AND DEPOSIT OF TAX WAS AVAILABLE ON THE SITE OF DEPARTMENT IN FORM NO. 26AS. THE FACTS IN THE PRESENT CASE INDICATE THAT ASSESSEE CLAIMED TO HAVE FORWARDED FORM NO.16A TO THE DEDUCTEE WITHIN THE PRESCRIBED PERIOD OF TIME THROUGH NORMAL POST AND THERE IS NO PRESCRIBED METHOD FOR F URNISHING OF SUCH CERTIFICATES TO THE DEDUCTEE. THEREFORE, THE CLAIM OF THE ASSESSEE THAT IT HAD SENT FORM NO. 16A THOUGH NOT SUBSTANTIATED BY S OLID PROOF CAN NOT BE BRUSHED ASIDE. EVEN IF THE ASSESSEE HAD NOT FURN ISHED THE SAID CERTIFICATES WITHIN THE PRESCRIBED PERIOD OF TIME T HE DEFAULT IS ONLY TECHNICAL IN NATURE. THEREFORE, THE PENALTY IN THE CIRCUMSTANCES WAS NOT IMPOSABLE AS THOUGH THE STATUTES PROVIDES LEVY OF P ENALTY FOR DELAY IN FURNISHING OF FORM NO.16A BUT THE PENALTY CANNOT B E IMPOSED WHERE THERE IS ONLY A TECHNICAL BREACH OR VIOLATION. ITA NOS.665 & 666 (ASR)/2015 ASST. YEARS: 2011-12 & 2012-1 3 5 11. THE HONBLE SUPREME COURT IN THE CASE OF HINDUS TAN STEELS LTD. VS. CIT (1972) 83 ITR 26 HAS HELD AS UNDER: 'AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI- CRIMINAL PROCEEDINGS, AND PE NALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DE LIBERATELY IN DEFIANCE OF LAW OR WAS A GUILTY OR CONDUCT CONTUMACIOUS OR DISH ONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENAL TY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSI DERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE J USTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNIC AL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BR EACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. IN VIEW OF THE ABOVE, THE PENALTY AS CONFIRMED BY C IT(A) IS DELETED. 12. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 .08.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09.08.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY