ACIT, New Delhi V. M/s. DHTC Logistic Ltd., New Delhi

ITA 675/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65453 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-09-2012
• Assessment Year: misc
• Appeal Filed On: 09-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S KRISHNA
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI S.V.MEHROTRA, ACCOUNTANT MEMBER AND SHRI KULBHARAT, JUDICIAL MEMBER I.T.A .NOS.-675,676 & 677/DEL/2012 (ASSESSMENT YEAR-2005-06 TO 2007-08) ACIT VS. DHTC LOGISTICS LTD., CIRCLE 49(1), 14, INDRA HOUSE COMMUNITY CENTRE, NEW DELHI. NEW FRIENDS COLONY, NEW DELHI PAN-DELDO6553B (A PPELLANT) (RESPONDENT) APPELLANT BY: SH. S.KRISHNA, CIT DR. RESPONDENT BY: SH. RAKESH K. SEHGAL, CA . APPEAL HEARD ON-05.09.2012 ORDER PRONOUNCED ON-14.09.2012 ORDER PER KULBHARAT, JM THESE THREE APPEALS OF THE ASSESSEE ARE DIRECTED AG AINST THE ORDER OF LD. CIT(A)-XXX, NEW DELHI DATED 17.11.2011 FOR THE AYS 2005-06 TO 2007-08. 2. ALL THESE APPEALS ARE ARISING OUT OF COMMON ORDE R AND RAISED IDENTICAL GROUNDS OF APPEAL. HENCE, THESE ARE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY A CONSOLIDATED ORDER. I.T.A .NO.-675,676 & 677/DEL/2012 2 3. THE REVENUE HAS RAISED THE IDENTICAL GROUNDS OF APPEAL IN ALL THE THREE APPEALS WHICH READS AS UNDER:- 1). IN DELETING THE PENALTY OF RS. 30,70,30,000/- LEVIED U/S 272B OF THE IT ACT BY THE A.O CIR. 49(1) HOLDIN G THAT THE PENALTY IS PER PERSON (APPELLANT) AND NOT PER P AN. 2). IN DIRECTING THE A.O TO COLLECT THE PENALTY DEM AND OF RS. 30,000/- U/S 272B OF THE IT ACT AS PER PER PERSON (APPELLANT) PER YEAR. 3). IN APPRECIATING THE FACT THAT THE SECTION 139(5 B) IS TO BE READ IN CONJUNCTION WITH SECTION 272B, IF THE SE TWO SECTIONS ARE READ TOGETHER, THE INTEND OF THE LEGIS LATION BECOMES APPARENT THAT THE PENALTY IS TO BE LEVIED P ER PAN IN THE TDS RETURN AND NOT PER PERSON. THE FACTS ARE IDENTICAL IN ALL THESE APPEALS, HENC E THE FACTS OF ITA NO.675/DEL/2012 ARE BEING TAKEN AS A LEAD CASE. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSING OFFICE R ISSUED A SHOW CAUSE NOTICE FOR LEVYING PENALTY U/S 272B R.W.S 139A(5B) IN RESPECT OF MISSING PAN OF DEDUCTEE IN THE TDS RETURN. THE ASSESSEE IN RESPECT OF THERETO MADE A DETAILED REPLY. HOWEVER, THE ASSESSING OFFICER D ID NOT ACCEPT THE EXPLANATION OFFERED BY THE COUNSEL FOR THE ASSESSEE AND IMPOSED A PENALTY OF RS. 30,70,60,000/- I.E @ RS. 10,000/- FOR MISSING/I NCORRECT PAN OF 30706 DEDUCTEES. THE ASSESSEE FEELING AGGRIEVED BY THE O RDER OF THE ASSESSING OFFICER PREFERRED AN APPEAL TO LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS REDUCED THE PENALTY TO RS. 30,000/-. AGAINST THIS ORDER, THE REVENUE HAS FILED THE INSTANT APPEALS. I.T.A .NO.-675,676 & 677/DEL/2012 3 5. LD. CIT DR STRONGLY RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT SECTION 272B OF THE ACT IS TO BE READ IN CONJUNCTION WITH SECTION 139A(5B) OF THE ACT. HE SUBMITTED THAT NON -MENTIONING OF THE PAN, MADE THE DEDUCTOR LIABLE FOR PENALTY U/S 272B AND SUCH PENALTY IS LEVIABLE ON EACH DEFAULT. ON THE CONTRARY, LD. AR OF THE ASSESSEE SUBMITTED THAT THE TAX AT SOURCE IS DEDUCTIBLE U/S 194C OF TH E ACT IN RESPECT OF THE PAYMENT MADE. HE SUBMITTED THAT SECTION 194C(6) EN VISAGES THAT NO TAX IS DEDUCTIBLE IN THE EVENT I.E PAN IS FURNISHED. HE S UBMITTED THAT IN THIS CASE THE PAN WAS NOT MADE AVAILABLE BY THE DEDUCTEE TO T HE DEDUCTOR ASSESSEE COMPANY. HE SUBMITTED THAT EVEN OTHERWISE ALSO IN TERMS OF BOARDS LETTER DATED 05.08.2008 NO. 275/24/2007-IT(B), THE PENALTY U/S 272B IS NOT LEVIABLE IN RESPECT OF DEFAULT. HE SUBMITTED THAT IT HAS BEEN CLARIFIED THEREIN THAT THE PENALTY IS LINKED TO THE PERSON AND NOT WI TH THE NUMBER OF DEFAULTS IN THE PAN QUOTING IN THE E-TDS RETURN. HE ALSO RELI ED ON THE DECISION OF THE HONBLE ITAT, BANGLORE BENCH, RENDERED IN ITA NO. 9 07,908 & 909 (IND.) 2008 WHEREIN IT HAS BEEN OBSERVED THAT THERE IS NO MECHANISM AT THE END OF THE ASSESSEE DEDUCTOR TO COMPEL DEDUCTEE TO PROVIDE PAN. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED MATE RIAL AVAILABLE ON RECORD. LD. CIT(A) HAS RESTRICTED PENALTY TO THE T UNE OF RS. 30,000/- IN ALL THESE APPEAL FOLLOWING THE CLARIFICATION EMBODIED I N THE CBDT LETTER DATED I.T.A .NO.-675,676 & 677/DEL/2012 4 05.08.2008. SINCE THIS FACT IS NOT DISPUTED BY TH E REVENUE THAT CBDT HAS ISSUED A CLARIFICATION WHEREBY IT HAS BEEN CLARIFIE D PENALTY U/S 272B OF RS. 10,000/- IS LINKED TO THE PERSON AND NOT WITH THE N UMBER OF DEFAULTS. 7. HENCE, WE DO NOT FIND ANY INFIRMITY INTO ORDERS OF LD. CIT(A), THIS GROUND OF THE APPEAL IS REJECTED SINCE THE FACTS OF THE GROUNDS ARE IDENTICAL IN ALL THE THREE APPEALS I.E ITA NO. 675, 676 & 677/DE L/2012. 8. IN THE RESULT, ALL THESE THREE APPEALS OF THE RE VENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2012. SD/- SD/- (S.V.MEHROTRA) (KULBHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14/09/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI I.T.A .NO.-675,676 & 677/DEL/2012 5