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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 547/JP/2018
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
The assessee carves to amend, alter and modify any of the grounds of appeal.
The appropriate cost be awarded to the assessee.”
The assessee is a District Excise Officer responsible for tax
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.
The assessee filed an appeal against the levy of penalty before the
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
Before us, the ld AR of the assessee has submitted that the
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.
On the other hand, the ld DR has relied upon the orders of the
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.
Having considered the rival submissions as well as the relevant
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