DISTRICT EXCISE OFFICE, RAJASTHAN SARKAR, EXCISE DEPARTMENT,KARAULI vs. JOINT COMMISSIONER OF INCOME TAX, RANGE-TDS, UDAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 547/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2011-12 cuke District Excise Office, J.C.I.T., Vs. Rajasthan Sarkar, Excise Range TDS, Department, Gulab Bagh, Karauli. Udaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: JDHDO3778F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Shri K.C. Meena (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 24/09/2018 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 25/09/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M.

This appeal by the assessee is directed against the order dated

17/01/2018 of ld. CIT(A), Kota arising from the penalty order passed U/s

272A(2)(k) of the Income Tax Act, 1961 (in short the Act) for the A.Y.

2011-12. The assessee has raised following grounds of appeal: “1. The ld. CIT(A) has erred on facts and in law in deciding the appeal ex-parte without providing adequate opportunity of hearing to the assessee. 2. The ld. CIT(A) has erred on fact and in law in confirming the levy of penalty U/s 272A(2)(K) at Rs. 45,200/-.

ITA 547/JP/2018_ 2 District Excise Office Vs JCIT

collection at source (TCS) and payment of the same to the government

of India as well as filing the quarterly TCS statement in the Form 27EQ.

The Assessing Officer noted that an amount of Rs. 2,50,327/- was the

tax collectible at source and the assessee was liable to file a quarterly statement U/s 200(3) of the Act for the 2nd quarter of the financial year

2010-11. Thus, the due date of filing the quarterly statement was

15/10/2010 but the assessee filed the quarterly TCS statement on

10/01/2012 resulting a delay of 452 days. The Assessing Officer,

accordingly, initiated the penalty proceedings U/s 272A(2)(K) of the Act

by issuing notice dated 10/09/2012 and 24/12/2012. Since there was no

response from the assessee, the Assessing Officer finally levied the

penalty of Rs. 45,200/- @ Rs. 100 per date for delay of 452 days.

ld. CIT(A), however, despite the notice issued by the ld. CIT(A), no body

has appeared on behalf of the assessee before the ld. CIT(A) and

consequently the ld. CIT(A) has confirmed the penalty levied by the

Assessing Officer U/s 272(2)(K) of the Act.

ITA 547/JP/2018_ 3 District Excise Office Vs JCIT

assessee has duly responded to the notice issued by the ld. CIT(A) and

on the first occasion, the assessee vide application dated 27/11/2017

requested for adjournment and thereafter on 30/11/2017, the assessee

sent written submissions. The ld AR has referred to the application dated

27/11/2017 for seeking adjournment which was sent through speed post.

Further the ld AR has referred to the written submissions dated

31/11/2017 which was also sent through speed post dated 06/12/2017

and submitted that the ld. CIT(A) has decided the appeal of the assessee

without considering the application for adjournment as well as the

written submissions of the assessee. Hence, the ld AR has submitted that

the impugned order may be set aside as it is in violation of the principles

of natural justice. Alternatively the ld AR has submitted that even

otherwise when the assessee has collected the tax at source and was

duly deposited with the government within the period of limitation

prescribed under the Act then the non-filing of TCS quarterly statement

is only due to bonafide and inadvertent mistake as the assessee being

the government officer was not fully aware about the requirement of

filing of TCS statements. Hence when the assessee has otherwise

collected the tax and deposited the same with the government then the

bonafide mistake of the assessee shall be regarded as an explanation U/s

ITA 547/JP/2018_ 4 District Excise Office Vs JCIT

273B of the Act. The ld AR has relied upon the decision of Hon'ble

Supreme Court in the case of Hindustan Steel Ltd. Vs State of Orissa

(1972) 83 ITR 26 (SC) as well as the decision of the Coordinate Bench of

this Tribunal in the case of Rajasthan Tribal Area Development

Cooperative Federation Ltd. Vs ITO 60 TTJ 427 (JP Trib) and submitted

that when the assessee has otherwise complied the statutory obligation

and non-filing of quarterly statement is only a technical default, which is

due to inadvertent and bonafide mistake then the penalty is not leviable.

authorities below and submitted that despite the sufficient opportunities

given by the Assessing Officer as well as the ld. CIT(A), none has

appeared and responded to those notices on behalf of the assessee.

material on record we note that the penalty U/s 272A(2)(k) of the Act

was levied by the Assessing Officer due to the default on the part of the

assessee to submit the quarterly statements in Form No. 27EQ and there

was a delay of 452 days in submitting the quarterly statement U/s 200(3)

of the Act. Before the ld. CIT(A), the assessee claimed to have submitted

written submissions dated 30/11/2017 vide speed post dated

06/12/2017. However, we find that as per speed post receipt dated

ITA 547/JP/2018_ 5 District Excise Office Vs JCIT

06/12/2017, the address of the ld. CIT(A) is not correctly mentioned. It

appears that the said envelope containing the written submissions was

sent to some other authority and not to the ld. CIT(A). The address

mentioned on the postal receipt is as “Income Tax Aayukt, CAD Circle,

Kota” where the proper address of the CIT(A) is “CIT(Appeals), Income

Tax Department, Kota, Rajasthan”. Thus, the letter was not addressed to

the ld. CIT(A) but it was addressed to the I.T. Commissioner, hence, it

appears that the said letter was not received by the ld. CIT(A) before the

impugned order was passed. The ld. CIT(A) has observed that no

representation has been made by the assessee, the same is found to be

correct but the mistake in the address is not a deliberate or willful default

for non-representation on behalf of the assessee before the ld. CIT(A).

Therefore, in the facts and circumstances of the case and in the interest

of justice, we set aside this issue to the record of the ld. CIT(A) for

granting one more opportunity to the assessee to present its case and

furnish explanation for delay in submitting the TCS statement U/s 200(3)

of the Act. The ld. CIT(A) has to decide the matter afresh after

considering the explanation of the assessee and in the light of Section

273B of the Act.

ITA 547/JP/2018_ 6 District Excise Office Vs JCIT 7. In the result, appeal of the assessee is allowed for statistical purposes only. Order pronounced in the open court on 25/09/2018.

Sd/- Sd/- ¼foØe flag ;kno½ ¼fot; iky jko½ (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 25th September, 2018 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- District Excise Office, Karauli. 1. izR;FkhZ@ The Respondent- The JC.I.T., Range TDS, Udaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 547/JP/2018) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत