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Income Tax Appellate Tribunal, DIVISION BENCH ‘A’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘A’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.1573/Chd/2017 (Assessment Year : 2012-13) The Commander Works Engineers, Vs. The JCIT (TDS), Headquarter Bldg No.26, Chandigarh. New Lal Bagh, Patiala. PAN: PTLH12424G (Appellant) (Respondent)
Appellant by : Shri Vibhor Garg, CA Respondent by : Shri Surinder Meena, JCIT Date of hearing : 23.05.2018 Date of Pronouncement : 04.07.2018
ORDER PER ANNAPURNA GUPTA, AM:
This appeal has been preferred by the assessee against
the order of learned Commissioner of Income Tax (Appeals)-
1, Ludhiana (hereinafter referred to as CIT(Appeals)) dated 7.9.2017 relating to assessment year 2012-13, levying
penalty u/s 272A(2)(k) of the Income Tax Act, 1961 (in
short ‘the Act’), for late filing of TDS returns.
Briefly stated, while perusing the TDS returns filed by the assessee, the jurisdictional Assessing Officer,TDS-1,
Patiaia observed that the quarterly statement in form
number. 24Q for the 1 s t, 2 nd, 3r d and 4 t h quarters of the
F.Y.2011-12 were filed on 03.03.2014, which otherwise was due to be filed on 31.07.2011, 31.10.2011, 31.01.2012 and
15.05.2012 respectively. There was, thus, a delay of 945
days, 855 days, 765 days and 660 days respectively in
delivering or causing to be delivered the said statement
within the time specified in sub- section (3) of section 200
of the Act. The person responsible [hereinafter
referred to as "PR"] making the aforesaid compliance was put to notice requiring him to show cause as to why penalty
under the provisions of section 272A(2)(k) read with
section 274 of the Act not to be levied for late filing of
the quarterly statements. In response, it was submitted
that TDS of officers and staff working in the jurisdiction of
PR was being deducted by PCDA WC, Chandigarh and TDS
return was also being filed by them. It was submitted that
on 27.03.2012, PCDA WC, Chandigarh, directed the
assessee PR to obtain separate TAN, DDO Registration No.,
DDO Code, PIN code of Patiaia office etc. Thereafter all the
applied and received and further said things was
intimated to PCDA (WC), Chandigarh on 09.01.2013.
Further, no intimation was received from
PCDA(WC), Chandigarh to the assessee regarding
deduction and deposit of TDS. It was contended that only
after receiving notice of ITO (IDS), Patiala regarding non
filing of TDS return of 24Q of quarter 1, 2 n d ,3 r d and 4 t h of
F.Y. 2011-12, the said TDS returns were filed on
03.03.2014. It was also stated that there was no malafide
intention of the assessee in not submitting the statement
in time. Reference was made of the decision of the ITAT
Lucknow judgement 2011(5) TMI 831 in the case of
Branch Manager, PNB Vs Addl.Commissioner of Income
Tax in IT Appeal No.285(Luck)2011, dated 31.05.2011.
Repudiating the submissions of the assessee, the
Joint Commissioner of Income Tax, TDS, Chandigarh held
that the delay in filing the statement was not occasioned
by any reasonable and sufficient cause and proceeded to
penalise the assessee under the provisions of section
272A(2)(k) of the Act, levying penalty of Rs.1,61,390/-.
The matter was carried in appeal before the
CIT(Appeals) who dismissed the assessee’s appeal stating
that considering the period of default it was clear that the
PR had treated the statutory provisions with contempt
and that there was a conscious disregard of the obligation
cast on it and thus no bonafide reason for the default.
The Ld.CIT(A) held as under:
“6. The submissions of the appellant have been considered. There is no doubt that the penalty has been levied for the technical breach of not filing the quarterly statement within the stipulated period and that there was no loss in as much as the due taxes were paid on time. Even if the aforesaid technical breach be considered venial in view of the fact that there is no loss of revenue as taxes have been deducted and paid to the treasury of the Government, the default on the part of PR cannot be treated with levity as the responsibility cast upon him has not been discharged as per the statutory provision in this regard. It is also not a case of a default for a day or two. The default continued for more than a year which goes on to show that the PR treated the statutory provision of law with an undeserving contempt. If due care and caution is not exercised by the person responsible for making compliance to the provisions of law, the ensuing default cannot be considered as venial. The prescribed penalty for such a breach has been mandated by the statute. The PR is called upon to
effect compliance to the provisions in every quarter in respect of the withholding tax obligations, failng which the penalty has to be imposed. In the instant case, the PR cannot claim that the default was occasioned because of the bonafide belief that such quarterly statement can be filed as late as has been filed in the instant case. The default may not be contumacious but there is definitely a conscious disregard of the obligation cast upon the PR. Besides, if a default or a mistake can be avoided or obviated by exercising some care and caution, such default cannot be considered as occasioned by a reasonable cause or a sufficient cause. Imposition of penalty in such cases would also act as a deterrent for the PR to be careful and not cause breach of the statutory provision without any reasonable cause. The imposition of penalty is, hereby, confirmed. It is ordered accordingly.” 6. Aggrieved, the assessee has come up in appeal before
us raising the following grounds:
“1. Because the action for upholding the levy of penalty u/s 272A(2)(k) for Rs.1,61,390/- is being challenged on facts & law and the quantum thereof is being disputed too. 2. That the appellant prays for any consequential relief and or legal claim arising out of the present appeal and leave for any addition, deletion, amendment and modification in the grounds of appeal before the disposal of the same.” 7. Before us, the Ld. counsel for assessee reiterated
the contentions made before the CIT(Appeals) that there
was reasonable cause for the delay. Our attention was
drawn to the submissions made in this regard before the
CIT(Appeals) placed at Paper Book page 1 to 3 as under:
The TDS of the appellant and officers and staff working under; him was being deducted at sources by PCDA WC, Chandigarh and return of TDS was being filed by them. On 27/03/2012 appellant had received a letter from PCDA WC, Chandigarh to apply and obtain separate TAN, DDO Registration No., DDO Code, PIN code of Patiala office. Thereafter all the above was applied in due course and we received the TAN on 19th April, 2012. We have intimated
all the above details to PCDA (WC), Chandigarh on 09/01/2013. As no intimation was received from PCDA (WC), Chandigarh regarding deduction and deposit of TDS by appellant it was presumed that the tax continued to be deducted and deposited by the PCDA WC, Chandigarh in their own TAN for the F/Y. 2011-12. As such we had bonafide belief that that the required information of TDS for F/Y. 2011-12 was submitted by the Controlling Office Chandigarh to the Income Tax Authorities as in the past. The ITO TDS- Patiala advised/required us to file the TDS returns, 24Q-1 to 24Q-4 for the F/Y. 2011-12 at Patiala vide her letter dated 09/01/2014 only than we came to know that the required informations for Patiala Office have not been filed. The sequence of correspondence with the PCDA (WC), Chandigarh and HQ Delhi and relevant records are enclosed herewith (Ann, Pg 1 to 37)” 8. Referring to the above it was contended that earlier the
TDS compliances were being done by PCDA WC and it
was only on 27/03/12 ,when the due date for filing TDS
returns of first three quarters of the year had expired,that
it was asked to obtain and apply for TAN and other
requirements for deducting TDS and even after the
assessee had complied with the same it was never asked
to take over the TDS compliances required under law.It
was contended therefore that the assessee was of the
belief that the TDS compliances would be continued by
PCDA WC and it was only when notices of non compliance
was received from the ITO-TDS that the assessee became
aware of its default which was immediately complied with.
Our attention was drawn to a datewise state of case
annexed with the submissions as under:
It was also pointed out that documents evidencing the
same had also been annexed thereto .Ld.Counsel for the
assessee therefore contended that the assessee had
sufficiently demonstrated the existence of reasonable
cause for the late deposit of TDS returns and the findings
of the CIT(A) in this regard were therefore incorrect.It was
contended that the penalty levied therefore ought to be
deleted.
The Ld. DR on the other hand relied upon the order of
the CIT(Appeals).
We have heard both the parties ,gone through the
orders of the authorities below and also the documents
referred to before us. The issue before us being levy of
penalty u/s 272A(2)(k) of the Act,for late deposit of TDS
returns, there is no dispute that no penalty is leviable if
the assessee proves that there was a reasonable cause for
the failure,as provided u/s 273B of the Act.
We find merit in the contentions of the Ld. counsel for
assessee that the assessee had sufficiently demonstrated
the existence of reasonable cause for the default. The Ld.
counsel for assessee has contended that it was not
required to deduct TDS earlier and was only intimated on
27.3.2012 to obtain TAN, DDO Registration No., DDO
Code, etc. to facilitate TDS compliances. That it complied
with the same, but in the absence of any specific order to
deduct tax at source, refrained from doing so, presuming
that it was being continued to be done by PCDA(WC) and
it was only when ITO-TDS, issued notice to it requiring it
to file TDS return vide letter dated 9.1.2014 that they
come to know of the default and hence the delay. Copies
of all correspondence in this regard were also placed. No
infirmity in these facts have been pointed out to us by the
Revenue. It is therefore abundantly clear that the ‘Person
Responsible’ had a bonafide reason for the delay in filing
TDS returns. Being required to comply with the TDS
requirements and compliances for the first time and that
too not being specifically intimated to do so by the
authority who was earlier doing it, the ‘Person
Responsible’s belief that the authority was continuing to
do so was a bonafide and reasonable belief. Therefore, the
filing of TDS return later on, only on being required to do
so by the ITO TDS, automatically resulted in delay on
account of a reasonable cause. There is no merit in the
contention of the CIT(Appeals) that the penalty was
justified considering the huge period of delay. The
assessee having duly explained the cause for the delay.
“Person Responsible” cannot be held responsible for the
delay nor can be said to have consciously disregarded the
obligation cast upon him.
In view of the above, we hold that the assessee
having shown reasonable cause for the delay in filing TDS
return, no penalty u/s 272A(2)(k) of the Act is leviable
and the same is, therefore directed to be deleted.
In the result, the appeal of the assessee is allowed.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 4th July, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh