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Income Tax Appellate Tribunal, DELHI BENCH “F” DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & SHRI PRADIP KUMAR KEDIA
PER PRADIP KUMAR KEDIA, A.M.:
The captioned appeal has been filed by the Assessee against the order of the Commissioner of Income Tax (Appeals)-XXXI, New Delhi [‘CIT(A)’ in short] dated 11.06.2019 arising from the order dated 26.05.2016 passed by the Assessing Officer (AO) under Section 272A(2)(g) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12. 2. When the matter was called for hearing, none appeared on behalf of the assessee. It is seen that opportunities were given in the past which has not been availed by the assessee. It is further seen that none appeared before the CIT(A) either and the CIT(A) passed the order ex-parte. Taking into account the conduct of the assessee, we proceed ex-parte in the absence of the assessee.
I.T.A. No.6959 & 6960/Del/2019 2
The nature of grievance in both the captioned appeals is identical. In both these appeals, the assessee has challenged the imposition of penalty under Section 272A(2)(g) of the Act for delay in issuing TDS Certificates to the respective payees.
On perusal of record, it is seen that in case of Park Land Hospitality Ltd. (ITA No.6959/Del/2019) the penalty of Rs.49,73,528/- for delay in issuing certificate for different quarters has been tabulated by the CIT(A) which is reproduced herein for ready reference.
F.Y. 2011-12 Quarterly Actual date of Delay Total no. of Amount of TYPES OF TDS Due Date of Returns issuance of (No. of Penalty (Rs.) Certificates issuing deductees certificates days) certificates to the deductees Q1 Form 16A 30.07.2011 17.07.2012 353 223 14,61,739 Q2 Form 16A 30.10.2011 26.07.2012 270 246 12,37,466 Q3 Form 16A 30.01.2012 07.07.2012 229 10,14,447 221 Q4 Form 16A 30.05.2012 13.03.2013 287 219 12,59,876 Total 49,73,528
The CIT(A) has confirmed the action of the Assessing Officer in imposing the penalty for delay in issuing of TDS certificates holding absence of reasonable cause. The relevant operative paragraph is reproduced hereunder:
“4.1 All the grounds of appeal raised by the appellant pertain to imposition of penalty u/s. 272A(2)(g) at Rs. 49,73,528/- for delay in issuing of TDS certificates in Form 16A in respect of all the quarters. The reasons stated by the appellant are financial crisis resulting into delay in payment of tax deducted at source and then consequential delay in issuing TDS certificates. However, it appears that before the Assessing Officer appellant did not furnish any evidence in this regard. In the appellate proceedings, the appellant has also furnished no evidence to prove financial crisis beyond its control. Under these circumstances, it emerges that there was no reasonable cause within the meaning of section 273B
I.T.A. No.6959 & 6960/Del/2019 3
for issuing, TDS certificates belatedly by 221 days to 353 days. It may be noted that non issuing of TDS certificates in time causes genuine hardship to the deductees in claiming TDS credit in filing their Income Tax Return and hence the default is serious in nature. Under these circumstances, I hold that it is a fit case for imposition of penalty and hence the penalty imposed by the Assessing Officer is confirmed. Accordingly all the Grounds of appeal are dismissed.”
In the absence of any rebuttal of the facts recorded by the CIT(A), we are not in a position to take a different view. We are thus not inclined to interfere with the observation of the CIT(A).
In the result, the appeal of the assessee is dismissed.
Now we advert to ITA No.6960/Del/2019 wherein the penalty of Rs.1,25,400/- was imposed under Section 272A(2)(k) of the Act relevant to Assessment Year 2012-13 alleging failure of the assessee to deliver or to be delivered a copy of the statement within time limit specified in sub section (3) of Section 200 of the Act.
The penalty for delay in furnishing statement specified under Section 200(3) of the Act for different quarters has been tabulated by the CIT(A) which is reproduced herein for ready reference. Quarterly Due Date Date of Submission Delay (No. of Days) Penalty u/s 272A(2)(k) Returns (in Rs.) 24Q Q4 15-May-12 17-Jul-12 63 6300/- Q1 15-Jul-11 17-Jul-12 368 36800/- Q2 15-Oct-l 1 26-Jul-12 285 28500/- Q3 15-Jan-12 07-Sep-12 236 23600/- Q4 15-May-12 13-Mar-13 302 30200/- Total 125400/-
The Assessing Officer imposed penalty of Rs.1,25,400/- owing to non compliance for late filing of TDS return specified in Section 200(3) of the Act. The CIT(A) in first appeal also declined any relief. The relevant operative paragraph of the order of the CIT(A)
I.T.A. No.6959 & 6960/Del/2019 4
is reproduced hereunder: “4.1 All the grounds of appeal raised by the appellant pertain to imposition of penalty u/s. 272A(2)(k) at Rs. 1,25,400/- for delay in filing of TDS return for Q4 by 63 days in respect of Form No. 24Q and by 236 to 368 days in respect of Form No. 26Q (Q1 to Q4). The reasons stated by the appellant are financial crisis resulting into delay in payment of tax deducted at source and then consequential delay in filing TDS returns. However, it appears that before the AO appellant did not furnish any evidence in this regard. In the appellate proceedings, the appellant has also furnished no evidence to prove financial crisis beyond its control. Under these circumstances, it emerges that there was no reasonable cause within the meaning of section 273B for filing TDS return belatedly. It may be noted that non filing of TDS return in time causes genuine hardship to the deductees in claiming TDS credit in filing their Income Tax Return and hence the default is serious in nature. Under these circumstances, I hold that it is a fit case for imposition of penalty and hence the penalty imposed by the AO is confirmed. Accordingly all the Grounds of appeal are dismissed.” 11. In the absence of any rebuttal on behalf of the assessee, we are not in a position to controvert the facts recorded and conclusion drawn by the CIT(A). We thus decline to interfere with the order of the CIT(A). 12. In the result, the appeal of the assessee is dismissed. 13. In the combined result, both the appeals of the assessee are dismissed ex-parte. Order pronounced in the open Court on 25/11/2022.
Sd/- Sd/- [CHALLA NAGENDRA PRASAD) [PRADIP KUMAR KEDIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: /11/2022 prabhat