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Income Tax Appellate Tribunal, DELHI BENCH: ‘D’: NEW DELHI
Before: SHRI N.K BILLAIYA & SHRI KULDIP SINGH
order dated 19.01.2015 passed by Ld. CIT(A)-13, New Delhi, affirming the penalty order dated 30.05.2013 passed u/s 272A(2)(k)/274 of the Income-tax Act, 1961 (for short the ‘Act’), qua Assessment Year 2004-05, on the grounds that:-
“1. Whether on the fact and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the penalty amounting to Rs. 27,61,800/- levied u/s 272A(2)/(k) of the IT Act. 2. The appellant craves leaves to add, alter or amend any of the grounds of appeal at the time of hearing.”
2. Briefly stated the facts necessary for adjudication of the controversy at hand are:- after survey proceedings conducted u/s 133-A of the Income Tax Act, AO noticed delay in filing the quarterly return of Tax Deducted at Source (TDS) and consequently passed an order u/s 201(1)/201(1A) of the Act, raising demand of Rs. 12525305/- for short deduction of tax at source. On the basis of order passed u/s 201(1)/201(1A) of the Act, AO initiated the penalty proceedings u/s 272(A)(2)(k) and Section 271(1)(c) of the Act. Declining the contentions raised by the assessee, AO levied the penalty of Rs. 27,61,800/-u/s 272(A)(2)(k) of the Act.
3. The Assessee carried the matter before the Ld. CIT(A) by way of filing the appeal, who has deleted the penalty by partly allowing the appeal. Feeling aggrieved, the Revenue has come up before the Tribunal by way of filing the present appeal.
We have heard the Ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
The Ld. AR for the Assessee challenging the impugned order contended inter alia that; the impugned order has been passed by the AO beyond the prescribed period of limitation u/s 275 of the Act: that amended provisions contained of sub-section (3) of section 200 or the proviso to sub section (3) of section 206C are applicable only w.e.f.
01.04.2005.
On the other hand, Ld. DR relied on the order passed by AO.
Undisputedly, an order u/s 201(1)/201(1A) of the Act was passed on 23.03.2011 and the penalty was initiated on the same day. It is also not in dispute that, the Ld. CIT(A) has passed an order against the quantum appeal on 27.07.2011.
When we examine the penalty order in the light of the aforesaid undisputed facts, it goes to prove that the penalty order passed on 30/5/2013 was required to be passed before 31/03/2013 i.e. within one year from the end of Financial Year in which the order of Ld. CIT(A) has been received by the Chief Commissioner or Commissioner. Hence, the Ld. CIT(A) has rightly held that the impugned order is hopelessly barred by limitation.
Furthermore, when we peruse the facts of this case, it goes to prove that the AO has proceeded to pass the order u/s 201(1)/201(1A) of the Act, on the premise that assessee was required to file the return of TDS at quarterly basis and applied the amended provisions contained u/s 200(3) effective from 1/4/2005, whereas in assessee’s case which pertains to Financial year 2003-04 return was to be filed on yearly basis, which the assessee has filed on 30/6/2004.
Moreover, return filed by Assessee on-line has been accepted and covered u/s 206(3) of the Act, so, when there was no requirement of filing the return on quarterly basis, penalty order passed by Assessing Officer is not sustainable in the eyes of law and consequently, finding no illegality or perversity of the finding returned by Ld. CIT(A), thus, present appeal filed by the Revenue is hereby dismissed.
Order pronounced in the open court on 17/7/2018