Anil Kumar Bihani, Panchkula V. ITO (TDS), Panchkula

ITA 800/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68509 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 25-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause; Revised return
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.798 TO 800/CHD/2013 ASSESSMENT YEARS : 2008-09 & 2009-10 ANIL KUMAR BIHANI, VS. THE INCOME TAX OFFICER(T DS), PLOT NO.102, GH 4, PANCHKULA. SECTOR 20, PANCHKULA. PAN: AHLPB9553H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANOJ RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 24.09.2013 DATE OF PRONOUNCEMENT : 30.09.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THESE THREE APPEALS FILED BY THE ASSESSEE ARE AGAIN ST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS), PANCHKULA DATED 2.4.2013 RELATING TO ASSESSMENT YEA RS 2008-09 AND 2009-10 AGAINST THE PENALTY LEVIED U/S 272B OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE LEARNED A.R. FOR THE ASSESSEE HAS MOVED AN A PPLICATION FOR ADJOURNMENT WHICH IS REJECTED AS THE MATTER IS COVE RED BY THE EARLIER ORDER OF THE TRIBUNAL ON THE ISSUE OF LEVY OF PENAL TY UNDER SECTION 272B OF THE ACT. 3. COMMON GROUNDS OF APPEAL HAVE BEEN RAISED IN ALL THE APPEALS AND THESE READ AS UNDER: 2 1. THE LD. CIT(APPEALS) IS WRONG IN CONFIRMING THE PENALTY OF RS.10,000/- UNDER SECTION 272B OF THE INCOME-TAX ACT, 1961 AS THERE WAS A REASONABLE CAUSE UNDER SECTION 272B FOR NON-QUOTING OF PAN OF ONE DEDUCTEE IN THE TDS RETURN BECAUSE DEDUCTEE HAS NOT PROVIDED HER PAN AND ALSO ADMITTED BEFORE RENT CONTROLLER, PANCHKULA THAT SHE DOES NOT POSSESS ANY PAN SO TDS WAS DEDUCTED WITHOUT QUOTING PAN AND TDS RETURN WAS ACCORDINGLY FILED. 2. IN VIEW OF ALL THESE & SUCH OTHER GROUNDS, WHICH MAY BE TAKEN AT THE TIME OF HEARING THE APPEAL MAY PLEASE BE ALLOWED & JUSTICE RENDERED 4. ALL THESE THREE APPEALS RELATING TO THE SAME ASS ESSEE ON IDENTICAL ISSUE WERE HEARD TOGETHER AND ARE BEING D ISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 5. THE ISSUE ARISING IN THE PRESENT APPEALS IS IN R ELATION TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT. 6. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSEE HAD FILED E-TDS QUARTERLY RETURN IN FORM NO.26Q FOR 1 ST QUARTER AND 4 TH QUARTER RELATING TO ASSESSMENT YEAR 2008-09 AND FOR 1 ST QUARTERLY RELATING TO ASSESSMENT YEAR 2009-10. THE ASSESSEE HAD FAILED T O QUOTE PAN NUMBER OF THREE DEDUCTEES EACH. BUT NO REPLY WAS FILED BE FORE THE ASSESSING OFFICER, WHO HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY OF RS.10,000/- EACH FOR THE 1 ST QUARTER AND 4 TH QUARTER FOR ASSESSMENT YEAR 2008-09 AND FOR 1 ST QUARTER FOR ASSESSMENT YEAR 2009-10. 7. BEFORE THE CIT (APPEALS) THE ASSESSEE CLAIMED TH AT CORRECT PAN NUMBER WAS GIVEN AS SOON AS THE DEFAULT WAS NOTICED BY THE ASSESSEE. HOWEVER, THE CIT (APPEALS) VIDE PARA 5.1 HAD GIVEN A FINDING THAT THE ASSESSEE HAD FAILED TO FILE REVISED RETURN AFTER CO RRECT PAN NUMBER. THE PLEA OF THE ASSESSEE WAS THAT TAX DEDUCTED WAS SMAL L, WAS HELD TO BE OF NO HELP BY THE CIT (APPEALS) SINCE THE PENALTY WAS LEVIABLE FOR WRONG QUOTING OF PAN NUMBER AND NOT FOR TDS NON DEDUCTION . THE CIT 3 (APPEALS) THUS UPHELD THE LEVY OF PENALTY UNDER SEC TION 272B OF THE ACT AT RS.10,000/- FOR 1 ST QUARTER AND 4 TH QUARTER RELATING TO ASSESSMENT YEAR 2008-09 AND FOR 1 ST QUARTER RELATING TO ASSESSMENT YEAR 2009-10. 8. THOUGH THE LEARNED A.R. FOR THE ASSESSEE MOVED A N APPLICATION FOR ADJOURNMENT BUT ONCE THE SAME WAS REJECTED RELIANCE WAS PLACED UPON THE RATIO LAID DOWN BY THE HON'BLE ALLAHABAD HIGH COURT IN CIT VS. GAIL (INDIA) LTD., IT APPEAL NO.460 OF 2009, DATE OF JUD GMENT 19.8.2013. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW AND THE ORDERS OF THE TRIBUNAL IN THE CASE OF ITO (TDS) VS. ORIENTAL BANK OF COMMERCE, YAMUNANAGAR, I TA NO.441/CHD/2012 RELATING TO ASSESSMENT YEAR 2008-09 ORDER DATED 15.7.2013. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT BUNCH OF APPEALS IS AG AINST THE LEVY OF PENALTY UNDER SECTION 272B OF THE ACT. THE ASSESSE E HAD FILED E-TDS QUARTERLY STATEMENT IN FORM NO.26Q FOR 1 ST QUARTER AND 4 TH QUARTER RELATING TO ASSESSMENT YEAR 2008-09 AND FOR 1 ST QUARTER RELATING TO ASSESSMENT YEAR 2009-10 AND THERE WAS DEFAULT IN QU OTING OF PAN NUMBERS OF THE THREE DEDUCTEES. THE ASSESSEE FAILE D TO FILE ANY CORRECTION STATEMENT EITHER BEFORE THE ASSESSING OF FICER OR BEFORE THE CIT (APPEALS). IN VIEW THEREOF, PENALTY UNDER SECT ION 272B OF THE ACT WAS LEVIED FOR EACH QUARTER AT RS.10,000/- EACH. 10. THE ASSESSEE IS AGGRIEVED BY THE SAID LEVY OF P ENALTY UNDER SECTION 272B OF THE ACT. THE ASSESSEE HAS RAISED TWO CONTE NTIONS, ONE BEFORE THE CIT (APPEALS) THAT IT HAS RECEIVED THE PAN NUMB ER OF THE DEDUCTEE WHOSE PAN NUMBER IS MISSING/INVALID. IN THE GROUN D OF APPEAL RAISED BEFORE US THE ASSESSEE CLAIMED THAT IN RESPECT OF O NE DEDUCTEE AS NO PAN 4 NUMBER WAS POSSESSED BY THE SAID DEDUCTEE THE SAME COULD NOT BE QUOTED IN THE E-TDS QUARTERLY RETURN FILED IN FORM NO.26Q BY THE ASSESSEE FOR EACH OF THE THREE QUARTERS. 11. WE FIND NO MERIT IN THE ALTERNATE PLEA RAISED B Y THE ASSESSEE THAT IS ONE BEFORE THE CIT (APPEALS) THAT HE WAS IN RECEIPT OF CORRECT TDS CERTIFICATE AND THE OTHER RAISED VIDE GROUNDS OF AP PEAL. 12. WE FURTHER FIND THAT SIMILAR ISSUE OF LEVY OF P ENALTY UNDER SECTION 2272B OF THE ACT AROSE BEFORE THE CHANDIGARH BENCH OF TRIBUNAL IN ITA NO.441/CHD/2012 & C.O.NO.31/CHD/2012 IN THE CASE OF ITO(TEDS) VS. ORIENTAL BANK OF COMMERCE, YAMUNANAGAR AND THE TRIB UNAL VIDE ORDER DATED 15.7.2013 HELD AS UNDER: 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN REL ATION TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT FOR THE DEFAU LT IN QUOTING OF PAN NUMBERS OF THE DEDUCTEES IN THE E-TDS QUARTERLY STA TEMENT FILED IN FORM NO.26Q BY THE ASSESSEE. THE ASSESSEE IN THE SAID F ORM NO.26Q RELATING TO FINANCIAL YEAR 2007-08 HAD WRONGLY QUOTED THE PA N NUMBERS IN RESPECT OF 53 DEDUCTEES. THE ASSESSEE HAD NOT FILE D THE CORRECTION STATEMENT BEFORE THE ASSESSING OFFICER OR BEFORE PA SSING OF THE ORDER OF THE CIT (APPEALS) ALSO. IN VIEW THEREOF THOUGH THE ASSESSING OFFICER LEVIED PENALTY OF RS.5,30,000/-, THE SAME WAS RESTR ICTED TO RS.10,000/- BY THE CIT (APPEALS). THE PROVISIONS OF SECTION 27 2B(1) OF THE ACT PROVIDE THAT IF A PERSON FAILED TO COMPLY WITH THE PROVISION OF SECTION 139A, THE ASSESSING OFFICER MAY DIRECT THAT SUCH PE RSON SHALL PAY, BY WAY OF PENALTY A SUM OF RS.10,000/- . IN VIEW OF THE ABOVE SAID PROVISIONS OF THE ACT WE ARE IN AGREEMENT WITH THE ORDER OF THE CIT (APPEALS) IN RESTRICTING LEVY OF PENALTY UNDER SECT ION 272B OF THE ACT AT RS.10,000/-. 8. SIMILAR ISSUE AROSE BEFORE THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASES OF VARIOUS ASSESSEES AND THE TRIBUNAL IN THE UNDERMENTIONED CASES HAD UPHELD THE LEVY OF PENALTY UNDER SECTION 272B OF THE ACT AT RS.10,000/- : SNO. NAME OF ASSESSEE ITA NO ASSTT.YEAR DATE OF DECISION 1. ITO(TDS) VS. STATE DIRECTOR SECONDARY EDUCATION, CHANDIGARH 777/CHD/2012 2009-10 22.11.2012 2. ADVANCED MICRO DEVICES PVT. LTD. VS. ITO(TDS), PANCHKULA 490/CHD/2012 2006-07 26.11.2012 3. THE SARASWATI INDUSTRIAL 830 TO 2009-10 31.01.2013 5 SYNDICATE LTD. VS. ITO (TDS), PANCHKULA 833/CHD/2012 4. THE BRANCH MANAGER VS. ITO(TDS), PANCHKULA 853 TO 855/CHD/2012 2008-09 & 2009-10 28.02.2013 9. THE LEARNED A.R. FOR THE ASSESSEE HAD ALSO FILED PAPER BOOK IN WHICH THE ORDER OF THE TRIBUNAL IN THE CASE OF ITO VS. AMBALA DISTT. CO- OP. MILK PRODUCERS UNION LTD. IN ITA NO.941/CHD/201 1, IS ATTACHED, UNDER WHICH THE PENALTY OF RS.10,000/- UNDER SECTIO N 272B OF THE ACT HAS BEEN UPHELD AND IT HAS BEEN FURTHER HELD THAT THERE IS NO PROVISION IN SECTION 272B FOR LEVY OF PENALTY @ RS.10,000/- PER DEFAULT. 10. HOWEVER, THE LEARNED A.R. FOR THE ASSESSEE PLAC ED RELIANCE ON THE RATIO LAID DOWN BY THE CHANDIGARH BENCH OF THE TRIB UNAL IN THE CORPORATION BANK VS. ITO IN ITA NOS.185 TO 187/CHD/ 2013 RELATING TO ASSESSMENT YEAR 2009-10 WHEREIN VIDE ORDER DATED 16 .4.2013, THE TRIBUNAL HAD DELETED THE PENALTY LEVIED UNDER SECT ION 272B OF THE ACT AT RS.10,000/-. THE TRIBUNAL (IN THE DIFFERENT COMBIN ATION) VIDE ORDER DATED 16.4.2013 HAD DELETED THE SAID PENALTY. HOWE VER, IN THE EARLIER DECISIONS THE CHANDIGARH BENCH OF THE TRIBUNAL HAD UPHELD THE LEVY OF PENALTY UNDER SECTION 272B OF THE ACT LEVIED FOR DE FAULT IN FURNISHING THE PAN NUMBER, TO THE EXTENT OF RS.10,000/-, IN A SERI ES OF DECISIONS, WHICH WERE NOT TAKEN NOTE OF BY THE OTHER BENCH OF THE TR IBUNAL. WE ALSO FIND THAT THE ASSESSEE HAD DEFAULTED IN NOT BRINGING TO THE KNOWLEDGE OF THE BENCH THE SAID DECISIONS WHICH HAVE BEEN DECIDED EA RLIER TO THE ORDER PASSED ON 16.4.2013. IN ANY CASE, THE PERUSAL OF T HE ORDER REFLECTS THE EFFORTS BEING MADE BY THE ASSESSEE THEREIN TO COLLE CT THE PAN NUMBERS OF THE DEDUCTEES AND NECESSARY DETAILS COULD NOT BE FU RNISHED AND THE TRIBUNAL THUS HELD THAT THERE WAS REASONABLE CAUSE IN NOT FURNISHING THE DETAILS AND HENCE NO PENALTY. HOWEVER, THE ASSESS EE HAS FAILED TO ESTABLISH ITS CASE OF REASONABLE CAUSE FOR THE DEFA ULT. IN VIEW OF THE EARLIER ORDERS OF THE TRIBUNAL ON THE ABOVE SAID IS SUE OF LEVY OF PENALTY UNDER SECTION 272B OF THE ACT, WE UPHOLD THE IMPOSI TION OF PENALTY UNDER SECTION 272B OF THE ACT AT RS.10,000/-. THE GROU NDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 13. THE LEARNED A.R. FOR THE ASSESSEE PLACED RELIAN CE ON THE RATIO LAID DOWN BY THE HON'BLE ALLAHABAD HIGH COURT IN CIT VS. GAIL (INDIA) LTD. (SUPRA) WHEREIN THE PENALTY OF RS.34,30,000/- WAS L EVIED UNDER SECTION 272B OF THE ACT AND THE SAME WAS DELETED BY THE HON 'BLE HIGH COURT. HOWEVER, IN THE FACTS OF THE PRESENT CASE THOUGH TH ERE WAS DEFAULT OF THREE DEDUCTEES IN EACH OF THE QUARTERS I.E. 1 ST QUARTER AND 4 TH QUARTER FOR ASSESSMENT YEAR 2008-09 AND 1 ST QUARTER FOR ASSESSMENT YEAR 2009-10, PENALTY UNDER SECTION 272B OF THE ACT HAD BEEN LEVI ED ONLY AT RS.10,000/- EACH AND THE SAME IS LEVIABLE IN VIEW O F THE ASSESSEE HAVING FAILED TO FURNISH ANY REASONABLE EXPLANATION FOR TH E SAID DEFAULT OF NOT 6 QUOTING PAN NUMBER OF THREE DEDUCTEES EACH. THUS U PHOLDING THE ORDER OF THE CIT (APPEALS) WE DISMISS GROUNDS OF APPEAL R AISED BY THE ASSESSEE IN ALL THE THREE APPEALS. 14. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH SEPTEMBER, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH