Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B”, BENCH KOLKATA
Before: SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM
आदेश / O R D E R
Per Bench:
The captioned appeal filed by the assessee, pertaining to assessment year 2011-12, is directed against the order passed by the Commissioner of Income Tax (Appeal)-24, Kolkata, in appeal No. 1082/CIT(A)-24/Kol/14-15, which in turn arises out of penalty order passed by the Assessing Officer u/s 272A(2)(k) / 274 of the Income Tax Act, 1961 (in short the ‘Act’) dated 19/09/2013.
At the time of hearing none appeared on behalf of assessee in spite of issuance of notice for hearing more than one occasion and Ld. Departmental Representative(DR), was present for the appellant Revenue. In the absence of any appearance by the assessee, the appeal is being disposed of ex parte qua the
MMJ Exports Pvt. Ltd. ITA No.18/Kol/2013 Assessment Year:2009-10 assessee, after hearing Ld. DR for the Revenue on merits in terms of Rule 24 of the Income Tax Appellate, Tribunal, Rules, 1963.
Grounds of appeal raised by the assessee are as follows: 1) For that, on the facts and in the circumstances of the case, the imposition of penalty is perverse, rather against evidence and material on record and without an iota of material or evidence to support and sustain the same.
2) For that, on the facts and in the circumstances of the case, the impugned penalty imposed amounting to Rs. 21,273/- (Rupees Twenty One thousand Two hundred and Seventy three only) by the Joint Commissioner of Income Tax (TDS), Range-58, Kolkata and confirmed by the ld. Commissioner of Income-tax (Appeal)-24, Kolkata is perverse and ought to be deleted in entirety.
3) For that, the appellant craves leave to add, alter, amend or withdraw any Ground at any time before or at the time of hearing.
Brief facts qua the issue are that during the penalty proceedings the Assessing Officer issued notice u/s 272A(2)(k) / 274 of the Act, for late filing of quarterly TDS statements for the F.Y. 2010-11 on 29th March, 2013 involving delays in filing of Form no. 26Q by the assessee. In response to the said notice the assessee filed a written submission along with its annexure. The Assessing Officer rejected the contention of the assessee and held that there was a delay of payment of quarterly statements relating to Q.1 to Q.4 in Form no. 24Q / 26Q which are as follows- Form no. Periodicity Delay (Days) 24Q Q.1 413 24Q Q.2 321 24Q Q.3 229 24Q Q.4 162 26Q Q.1 413 26Q Q.2 321 26Q Q.3 229 26Q Q.4 162
The A/R of the assessee contended vide letter dated 16/05/2013 explaining the delay in submission of return was that “the company is doing the business of
MMJ Exports Pvt. Ltd. MMJ Exports Pvt. Ltd. ITA No. ITA No.18/Kol/2013 Assessment Year: Assessment Year:2009-10
trading bamboo and supplying the same to bamboo board manufacturer. We trading bamboo and supplying the same to bamboo board manufacturer. We trading bamboo and supplying the same to bamboo board manufacturer. We purchased bamboo and made a purchased bamboo and made a stock for rainy season thinking that bamboo will stock for rainy season thinking that bamboo will not be available during the rains. The reason for delay in payment of TDS was not be available during the rains. The reason for delay in payment of TDS was not be available during the rains. The reason for delay in payment of TDS was that we could not sell the stock of bamboo and money, got stuck.” that we could not sell the stock of bamboo and money, got stuck.” that we could not sell the stock of bamboo and money, got stuck.”
The Assessing Officer rejected the contention of the assesse The Assessing Officer rejected the contention of the assessee and e and held that the reasons furnished by the A/R of the assessee does not constitute a reasonable reasons furnished by the A/R of the assessee does not constitute a reasonable reasons furnished by the A/R of the assessee does not constitute a reasonable cause’ as provided in section cause’ as provided in section 273B of the Act. Further, the Act does not provide 273B of the Act. Further, the Act does not provide for any relaxation for late filing of quarterly Statement of TDS in the for any relaxation for late filing of quarterly Statement of TDS in the for any relaxation for late filing of quarterly Statement of TDS in the circumstances as mentioned by the assessee and it is evident that the assessee did umstances as mentioned by the assessee and it is evident that the assessee did umstances as mentioned by the assessee and it is evident that the assessee did not comply with its statutory obligation u/s 200(3) of the Act. Thus, it is evident not comply with its statutory obligation u/s 200(3) of the Act. Thus, it is evident not comply with its statutory obligation u/s 200(3) of the Act. Thus, it is evident that the assessee has failed to comply with its statutory obligation of filing that the assessee has failed to comply with its statutory obligation of filing that the assessee has failed to comply with its statutory obligation of filing quarterly statement of TDS within the specified date. Therefore, the contention of tatement of TDS within the specified date. Therefore, the contention of tatement of TDS within the specified date. Therefore, the contention of the assessee was not accepted s not accepted by the Assessing Officer and penalty u/s 272A( and penalty u/s 272A(2)(k) of the Act was imposed was imposed. The quantum of penalty is quantified quantum of penalty is quantified by Assessing Officer as under:
On appeal, the ld. CIT(A) confirmed the penalty u/s 272A(2)(k) / 274 of the Act appeal, the ld. CIT(A) confirmed the penalty u/s 272A(2)(k) / 274 of the Act appeal, the ld. CIT(A) confirmed the penalty u/s 272A(2)(k) / 274 of the Act observing the following: observing the following: “The facts of the appeal is that the due date of deposit of the TDS was 30.04.2011 “The facts of the appeal is that the due date of deposit of the TDS was 30.04.2011 “The facts of the appeal is that the due date of deposit of the TDS was 30.04.2011 and the due date of filing of the return was 15.05.2011. But as the payment of the and the due date of filing of the return was 15.05.2011. But as the payment of the and the due date of filing of the return was 15.05.2011. But as the payment of the TDS was made on 29.09.2011, the TDS return could not uploaded. Hence the late TDS was made on 29.09.2011, the TDS return could not uploaded. Hence the late TDS was made on 29.09.2011, the TDS return could not uploaded. Hence the late payment of the TDS led to the late filing of the TDS return. he TDS led to the late filing of the TDS return. The argument of the appellant for justifying the late submission of the TDS return The argument of the appellant for justifying the late submission of the TDS return The argument of the appellant for justifying the late submission of the TDS return cannot be accepted as a reasonable ground for delay as the appellant had not cannot be accepted as a reasonable ground for delay as the appellant had not cannot be accepted as a reasonable ground for delay as the appellant had not furnished any justification for the delay in furnished any justification for the delay in the payment of the amount of TDs. The the payment of the amount of TDs. The amount of TDs was due to be deposited on 30.04.2011, but was deposited on amount of TDs was due to be deposited on 30.04.2011, but was deposited on amount of TDs was due to be deposited on 30.04.2011, but was deposited on Page | 3
MMJ Exports Pvt. Ltd. ITA No.18/Kol/2013 Assessment Year:2009-10 28.09.2011 and the appellant has not furnished any grounds explaining, the delay in the deposition of the tax. The delay in the deposit of tax was on account of the appellant itself and it cannot take that justification to explain the delay in the filing of the TDS return. Hence the contention of the appellant is not acceptance and the penalty imposed is upheld. Hence appeal is not allowed.”
Aggrieved the assessee is in appeal before us.
The ld. Counsel for the assesse has relied the order of the lower authorities below and on the other hand , the ld. DR has primarily reiterated the stand taken by the ld Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity.
We note that during the appellate proceedings the assessee submitted the following written submission, which is reproduced below:
“5. Vide notification No. 41 of CBDT dated 31.05.2010, due date of deposit of TDS for the last quarter of the F.Y. 2010-11 was 30.04.2011 and due date of filing of TDS Return for the last quarter of the relevant assessment year was 15.05.2011. So, it is obvious that a minimum period of 15 days was provided by the CBDT for preparation of TDS Return. In our case, the amounts were cleared from our bank on 28.09.2011 and Return was filed on 24.10.2011 (photocopy of challans and Receipt of Returns enclosed). Therefore, in the facts and circumstances of the case, there was only a delay of 11 (ELEVEN) days which may kindly be ignored and condoned for the purpose of imposition of Penalty u/s 272A(2)(k) r.w. 274 of the Income-tax Act, 1961 as imposition will only result in further financial stress for the appellant. However, interest amounting to Rs.2,590/- imposed by the Department has already been paid by the appellant on 17.01.2013 (photocopy of challans enclosed). 6. The appellant wishes to rely on the under mentioned authorities:- i) Porwal Creative Vision Pvt. Ltd. vs. ACIT [139 TTJ 001] ii) R. Karuppaswamy vs. 2nd ITO [9 TTJ 442] iii) Crest Communication Ltd. vs. Addl. DIT [106ITD 558] iv) 3rd ITO vs. Bombay Cable Co. (P) Ltd. [11 TTJ 385] v) Branch Manager, Punjab National Bank vs. Addl. CIT [140 TTJ 622] vi) Hindustan Steel Ltd. vs. State of Orissa [83ITR 26]
We have heard ld. D.R. and perused the material available on record. We note that the Hon'ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa [83 ITR 26], wherein the Court held as under:
MMJ Exports Pvt. Ltd. ITA No.18/Kol/2013 Assessment Year:2009-10 "An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." Hence the appellant petitions your kind conscience for deletion of penalty imposed on the appellant u/s 272A(2)(k) r.w. 274 of the Income Tax Act, 1961 in the special facts and circumstances prevailing in the case for the sake of restoration of natural justice as the breach was just technical in nature. Moreover, since those well initial days; TDS compliances was seemed and deemed as complicated and the assessee across the length and breadth of the country were of the bona fide belief that the offender is not liable to act in the manner prescribed by the statute.”
We note that penalty imposed by Assessing Officer is Rs. 21,273/- (small amount). We note that the assessee company was in acute financial problems and was not aware of the stringent provisions relating to TDS. The company made subsequent compliance and paid amount of TDS on 28.09.2011. Considering the facts and circumstances and taking into account that there is no loss of revenue and considering the smallness of amount , we delete the penalty of Rs. 21,273/-.
In the result, appeal filed by the assessee is allowed.
Order pronounced in the Court on 10.01.2020
Sd/- Sd/- (S.S.GODARA) (A.L.SAINI) �या�यकसद�य / JUDICIAL MEMBER लेखासद�य / ACCOUNTANT MEMBER
�दनांक/ Date: 10/01/2020 (SB, Sr.PS)
MMJ Exports Pvt. Ltd. ITA No.18/Kol/2013 Assessment Year:2009-10 Copy of the order forwarded to: 1. MMJ Exports Pvt. Ltd. 2. JCIT(TDS), Range-58, Kolkata 3. C.I.T(A)- 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File.