M/s Ashirwad Complex, Chandigarh V. JCIT (TDS), Chandigarh

ITA 895/CHANDI/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68567 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 09-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.895/CHD/2013 ASSESSMENT YEAR : 2010-11 M/S ASHIRWAD COMPLEX, VS THE J.C.I.T. (TDS ), # 1544, CHANDIGARH. BURAIL, SECTOR 45-C, CHANDIGARH. PAN : AALFA-7009A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRIKSHIT AGGARWAL RESPONDENT BY : SHRI J.S.NAGAR DATE OF HEARING : 07.11.2013 DATE OF PRONOUNCEMENT : 22.11.2013 O R D E R PER SUSHMA CHOWLA, JM THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS) DATED 18.07.2013 RELATING TO FINANCIAL YEAR 2009-10 AGAINST THE PENALTY LEVIED UNDER SECTION 272A(2)(K) OF THE INCOME- TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, WORTHY CIT (APPEALS) THROUGH HIS ORDER DATE D 18.07.2013 HAS ERRED IN PASSING THAT ORDER IN CONTR AVENTION OF PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961. 2. THAT ON FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, WORTHY CIT (A) HAS ERRED IN CONFIRMING THE LE VY OF PENALTY TO AN EXTENT OF RS. 23,774/- AS AGAINST LEVIED BY L D. AO AT RS. 2 45,414/- U/S 272A(2)(K) OF THE ACT, EVEN WHEN NO SU CH PENALTY WAS LEVIABLE ON THE APPELLANT. 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER NOTED THE ASSESSEE TO HAVE DEFAULTED IN FILING THE FORM NO. 26Q FOR ALL THE QUARTERS OF FINANCIAL YEAR 2009-10. THE ASS ESSEE WAS SHOW CAUSED TO EXPLAIN WHY PENALTY UNDER SECTION 272A(2) (K) OF THE ACT SHOULD NOT BE LEVIED FOR LATE FILING OF THE QUARTER LY RETURNS. THERE WAS NO RESPONSE FROM THE ASSESSEE AND THE ASSESSING OFFICER, IN VIEW THEREOF HELD THE ASSESSEE TO BE IN DEFAULT AND PENALTY @ RS. 100/- PER DAY OF DEFAULT WAS LEVIED FOR DELAY OF 18 85 DAYS IN RESPECT OF THE FOUR QUARTERLY TDS RETURNS, BUT THE SAME WAS RESTRICTED TO RS. 45,414/- WHICH WAS EQUAL TO THE A MOUNT OF TAX DEDUCTED AT SOURCE IN EACH QUARTER. 5. THE CIT(APPEALS) RESTRICTED THE PENALTY TO RS. 2 3,774/- BY HOLDING THAT THEE WAS NO DELAY IN FURNISHING THE RE TURN FOR THE FIRST QUARTER WHEREAS THE DELAY HAD BEEN COMPUTED AT 623 DAYS BY THE ASSESSING OFFICER. SIMILARLY, THE TDS RETURN FOR T HE SECOND QUARTER WAS FILED ON 09.12.2009 AS AGAINST THE DUE DATE OF 15.10.2009 AND THE DELAY WAS ONLY OF 54 DAYS AS AGA INST 532 DAYS COMPUTED BY THE ASSESSING OFFICER. CONSEQUENTLY, T HE REDUCTION IN THE PENALTY LEVIED UNDER SECTION 272A(2)(K) OF THE ACT. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. 6. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT ADM ITTEDLY THE TDS RETURNS WERE FILED BELATEDLY, HOWEVER THE TAXES I.E. THE TAX DEDUCTED AT SOURCE WERE DEPOSITED MUCH BEFORE THE A CTUAL DATE OF 3 FILING THE TDS RETURN AND THE CREDIT FOR THE SAME H AS NOT BEEN ALLOWED TO THE ASSESSEE. 7. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON TH E ORDER OF THE CIT(APPEALS). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELAT ION TO LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT WHICH I S LEVIABLE WHERE THE ASSESSEE HAS DEFAULTED IN FURNISHING THE QUARTERLY RETURNS OF TAX DEDUCTED AT SOURCE RELATING TO THE FINANCIAL YEAR. ADMITTEDLY, THERE WAS A DELAY IN FURNISHING THE TDS RETURNS BELATEDLY. HOWEVER, THE ASSESSEE CLAIMS TO HAVE DE POSITED THE TAXES DUE BEFORE FILING OF THE TDS RETURNS THOUGH A DMITTEDLY AFTER THE DUE DATE OF FILING THE TDS RETURNS. THE DETAIL S OF TAX DEDUCTED AT SOURCE, ITS DEPOSIT AND DUE & ACTUAL DATE OF FIL ING THE TDS RETURNS ARE AS UNDER : QTR.AMT. OF DATE OF DEPOSIT DUE DATE OF ACTUA L DATE DELAY IN PENALTY TDS OF LAST CHALLAN FILING OF TDS OF FILING OF FILING OF CONFIR- RETURN TDS TDS RETURN MED BY RETURN CIT(A) -- ------- ------------------ --------------- ----------- -------- --------- II 13520 30.11.2009 15.10.2009 9 .12.2009 54 5400 III 9187 10.02.2010 15.01.2010 1 .04.2011 441 9187 IV 9187 08.11.2010 15.06.2010 1. 04.2011 289 9187 --------------------------------------------------- ----------------------------------- TOTAL: 31894 23774 --------------------------------------------------- ----------------------------------- 9. IN THE TOTALITY OF THE ABOVESAID FACTS AND CIRCU MSTANCES, WHERE ASSESSEE HAD DEPOSITED THE AMOUNT OF TAX DEDU CTED AT SOURCE ON THE RESPECTIVE DATES, WE ARE OF THE VIEW THAT TH E PENALTY UNDER SECTION 272A(2)(K) OF THE ACT MERITS TO BE RESTRIC TED TO THE DATE OF DEPOSIT OF TAX AT SOURCE WHICH ADMITTEDLY IS BEYOND THE DUE DATE OF FILING THE TDS RETURNS. WE FIND SUPPORT FROM THE R ATIO LAID DOWN 4 BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN IN H. M.T. LTD. TRACTORS DIVISION VS CIT [ 274 ITR 544 (P&H) ] WHER EIN IT HAS BEEN HELD THAT WHERE THE TAX AT SOURCE HAD BEEN PAI D IN TIME AND THE NECESSARY RETURN IN RESPECT THEREOF WAS FILED I N TIME WITH THE INCOME TAX DEPARTMENT, ON MERE LATE ISSUE OF TAX DE DUCTION CERTIFICATE, THERE WAS NO LOSS TO THE REVENUE AND T HE DELAY IN FURNISHING THE TAX DEDUCTION CERTIFICATE WAS MERELY TECHNICAL OR VENIAL IN NATURE AND PENALTY COULD NOT BE IMPOSED. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE PENAL TY LEVIABLE UNDER SECTION 272A(2)(K) OF THE ACT IN LINE WITH OU R DIRECTIONS. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE, T HUS PARTLY ALLOWED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER,2013. SD/- SD/- ( T.R.SOOD) (SUSHMA C HOWLA) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 22 ND NOVEMBER,2013 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR ITAT,CHD.