M/S WORLD TRADE PARK LIMITED, JAIPUR V. JOINT COMMISSIONER OF INCOME TAX (TDS), JAIPUR

ITA 851/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3599 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONUM RAI
• Keywords: Period of limitation; TDS; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 851/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 M/S WORLD TRADE PARK LIMITED, (FORMERLY KNOWN AS R.F. PROPERTIES & TRADING LTD.), WORLD TRADE PARK, J.L.N. MARG, JAIPUR. CUKE VS. THE JCIT, (TDS), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JPRRO 4161 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ASHISH SHARMA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONUM RAI (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 31/05/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 31.08.2017 OF CIT (A), JAIPUR ARISING FROM THE PENA LTY ORDER PASSED U/S 272A(2)(K) OF THE I.T. ACT FOR FINANCIAL YEAR 2011- 12(1 ST QTR). THE ASSESSEE HAS RAISED THE FOLLOWING GROUND:- ITA NO. 851/JP/2017 M/S WORLD TRADE PARK LTD. JCIT 2 1. THAT THE CIT(A) HAS GROSSLY ERRED ON FACTS AND IN LAW IN UPHOLDING THE LEVY OF PENALTY U/S 272A(2)(K) OF RS. 41800/- FOR THE SOLITARY REASON OF FILING TDS RETURN DATE. 2. AT THE OUTSET OF THE HEARING, THE BENCH OBSERVED THAT THE APPEAL FILED BY THE ASSESSEE IS LATE BY 11 DAYS FOR WHICH THE LD. AR OF THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF D ELAY WITH FOLLOWING PRAYERS. 1. THAT THE IMPUGNED ORDER OF COMMISSIONER OF INCO ME-TAX DATED 31.08.2017 WAS RECEIVED BY THE UNEDUCATED TEM PORARY EMPLOYEE WHO WERE NOT AWARE OF THIS IMPLICATION OF LIMITATIONS AND LAWS LESS INCOME TAX ACT, 1961. 2. THAT THE TEMPORARY EMPLOYEE WHO RECEIVED THE IMP UGNED ORDER HAD KEPT THE ORDER ON THE TABLE OF UJJVAL SAN GTANI. 3. THAT UJJVAL SANGTANI HELD UP IN FINALIZATION OF ACCOUNTS EXTENDED OF LAST DATE WHICH WAS 7 TH NOV 2017. DUE TO WORK PRESSURE OF THIS FINALIZATION OF RETURN. THE LAST D ATE GOT ESCAPED FROM THIS MIND AND THE APPEAL COULD NOT BE PRESENTE D IN 6 TH NOV 2017. 4. THAT THE DELAY WAS NEITHER WILLFUL NOR INTENTION AL AND THE ASSESSEE WILL BE MADE SUFFER IRREPARABLE LOSS. THE ASSESSEES APPEAL IS NOT ADMITTED AND ALLOWED. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE NARRATED BY THE ASSESSEE, IT IS OBSERVED THAT THERE IS SUFFICIENT CAUSE IN PREVENTING THE ASSESSE E TO FILE THE APPEAL ITA NO. 851/JP/2017 M/S WORLD TRADE PARK LTD. JCIT 3 WITHIN PERIOD OF LIMITATION. HENCE, THE DELAY IN FI LING THE APPEAL BY THE ASSESSEE IS CONDONED. 4. THE AO NOTED THAT THE ASSESSEE IS DEFAULTED IN F ILING THE QUARTERLY STATEMENT/RETURN IN RESPECT OF THE TDS ON SALARY PA YMENT. THE AO ACCORDINGLY INITIATED THE PROCEEDINGS FOR LEVY OF P ENALTY U/S 272A(2)(K) OF THE ACT. THOUGH THE ASSESSEE CONTENDED THE LEVY OF PENALTY BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) HOWEVER, CO ULD NOT SUCCEED. 5. BEFORE US, THE ASSESSEE HAS RAISED VARIOUS CONTE NTIONS TO ASSAIL THE IMPUGNED ORDER PASSED BY THE AO. THE LD. AR ALS O CHALLENGED THE VALIDITY OF ORDER PASSED U/S 272A(2)(K) OF THE ACT AND SUBMITTED THAT THE ASSESSING OFFICER HAS PASSED THE ORDER UNDER WR ONG PROVISIONS. 6. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE AO HAS INITIATED THE PENALTY PROVISIONS FOR DEFAULT IN FIL ING THE QUARTERLY TDS STATEMENT BY THE ASSESSEE. SHE HAS FURTHER CONTENDE D THAT THE SO FAR AS THE PAN OF THE DEDUCTEES IS CONCERNED, THE ASSESSEE CANNOT TAKE THIS EXCUSE WHEN THE ASSESSEE IS PAYING SALARY TO ITS EM PLOYEES WITHOUT COMPLIANCE OF THE PROVISIONS OF SECTION 202(3) OR 2 06C OF THE IT ACT. SHE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES B ELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIALS ON RECORD. AT THE OUTSET WE NOTE THAT AN IDENTICAL ISSUE WAS ITA NO. 851/JP/2017 M/S WORLD TRADE PARK LTD. JCIT 4 ONSIDERED BY THIS TRIBUNAL IN ASSESSEES CAUSE FOR THE ASSESSMENT YEAR 2011-12(2 ST TO 4 TH QTR.) VIDE ORDER DATED 11.05.2018 IN ITA NO. 999, 1000 & 1006/JP/2017 IN PARA 4 AS UNDER:- 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS TAKEN A LEGAL OBJECTION AGAINST THE VALIDITY OF THE ORDER PASSED UNDER SECTION 272A(2)(K) AND SUBMITTED THAT THE AO HAS NOT SPECIF IED THE DEFAULT OF THE ASSESSEE WHETHER IT IS FOR NOT FILIN G OF TDS RETURN OR FOR NOT FILING OF TDS STATEMENT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ARGUS GOLDEN TRADES INDIA LTD. VS. J T. COMMISSIONER OF INCOME-TAX, TDS, JAIPUR (SUPRA). WE FIND THAT AS PER THE IMPUGNED ORDER PASSED UNDER SECTION 272A (2)(K), THE AO HAS LEVIED THE PENALTY DUE TO THE DEFAULT OF THE ASSESSEE IN FILING THE QUARTERLY TDS STATEMENT IN FORM NO. 24Q AND 26Q. IT IS PERTINENT TO NOTE THAT THE FORM NO. 24Q AND 26Q ARE REQUIRED FOR SUBMITTING THE QUARTERLY TDS STATEMENT IN RESPECT O F TDS ON SALARY AND TDS ON NON SALARY PAYMENTS. THEREFORE, T HE PENALTY HAS BEEN LEVIED BY THE AO AGAINST THE DEFAULT OF NO T SUBMITTING/DELIVERING THE QUARTERLY TDS STATEMENTS. WE FURTHER NOTE THAT THE ANNUAL TDS RETURN IS FILED AS PER FOR M NO. 24 AND 26 AND, THEREFORE, THERE IS A CLEAR DISTINCTION BET WEEN THE TWO REQUIREMENTS OF FILING THE QUARTERLY TDS STATEMENT AND ANNUAL TDS RETURN. THE FORMS ARE ALSO SEPARATELY PROVIDED FOR THE PURPOSE OF FILING THE QUARTERLY TDS STATEMENT AS WE LL AS FOR ANNUAL TDS RETURN IN FORM NO. 24Q AND 26Q AS WELL A S FORM NO. 24 AND 26 RESPECTIVELY. SINCE THE ASSESSEE HAS RAIS ED A LEGAL OBJECTION WHICH WAS NOT RAISED BEFORE THE AUTHORITI ES BELOW AND FURTHER THE SAID OBJECTION OF THE ASSESSEE CAN BE C ONSIDERED AND DECIDED ONLY AFTER CONSIDERING THE SHOW CAUSE NOTIC E ISSUED BY THE AO TO ASCERTAIN WHETHER THERE WAS ANY DEFECT AN D ILLEGALITY IN THE SHOW CAUSE NOTICE FOR INITIATION OF PENALTY U/S 272A(2)(K) OF ITA NO. 851/JP/2017 M/S WORLD TRADE PARK LTD. JCIT 5 THE ACT. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCE S OF THE CASE WHEN THIS ISSUE WAS NOT RAISED BEFORE THE AUTHORITI ES BELOW AND FURTHER THE SHOW CAUSE NOTICE ISSUED BY THE AO IS N OT AVAILABLE BEFORE US, WE SET ASIDE THE MATTER IN THESE THREE A PPEALS TO THE RECORD OF THE LD. CIT (A) FOR RE-ADJUDICATION OF TH E SAME AFTER CONSIDERING THE OBJECTION RAISED BY THE ASSESSEE. N EEDLESS TO SAY, THE ASSESSEE BE GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ORDER. FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL THAT W E SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT(A) FOR RE-ADJUDICATION OF THE SAME ON SIMILAR TERMS. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/05/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/05/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S WORLD TRADE PARK LIMITED, JAIPUR . 2. IZR;FKHZ@ THE RESPONDENT - JCIT(TDS), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 851/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR