JWALA LOGISTIC PVT. LTD.,,BARODA vs. THE INCOME TAX OFFICER, TDS WARD-1,, BARODA

आदेश / O R D E R

PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : This is an appeal by the assessee against the order of the Commissioner of Income Tax(Appeals)-VI, Baroda, dated 01/07/2014, for confirming the penalty u/s.272A(2)(k) of the I.T. Act levied by the AO, for the Assessment Year (AY) 2012-13, on the following Grounds: In the circumstances and on the facts of the case, the CIT(A) has erred in confirming penalty u/s.272A(2)(k) of the I.T. Act amounting to Rs.1,08,456/-.

ITA No. 2806/Ahd/2014 Jwala Logistic Pvt. Ltd. vs ITO. Asst.Year 2012-13 - 2 - 2. The relevant facts as culled out from the materials on record are as under:- In this case, on verification of records submitted by the assessee, it is noticed that the assessee had not filed the quarterly e-TDS statement for the 1st, 2nd, 3rd and 4th quarter during the F.Y. 2011-12 relevant to A.Y. 2012-13 within the specified time limit as per Section 200(3) of the I.T. Act, 1961. The due date for filing the quarterly e-TDS statement for the 1st, 2nd, 3rd and 4th quarter during the F.Y. 2011-12 was 15/07/2011, 15/10/2011, 15/01/2012 and 15/05/2012. However, the assessee has filed the quarterly statement for the 1st, 2nd, 3rd and 4th quarter on 29/11/2012. Therefore, a show-cause notice for imposing penalty u/s. 272A(2)(k) was issued and served upon the assessee.

2.2 In response to the notice, the assessee has submitted its reply vide letter 22.02.2013 which states that: “The assessee Company is a very small company not having employed any professionally qualified person to look after all these requirements/compliances. The directors also not being very much qualified, were not aware of the exact provisions for the due dates for filing of TDS returns. Further, you may kindly note that the amount of TDS have generally been paid in time by the company. The delay has taken place only in filing of the TDS returns and there is no loss to the revenue on account of delay in filing of the TDS returns. You may therefore, kindly appreciate that the delay is merely of clerical in nature and there is no willful attempt to evade any tax. Tax has properly been deducted at source and have also been paid in time. Under such circumstances, your honour are hereby requested to kindly drop the penalty proceedings initiated u/s.272A(2)(k) and oblige.”

ITA No. 2806/Ahd/2014 Jwala Logistic Pvt. Ltd. vs ITO. Asst.Year 2012-13 - 3 - 2.3 Thus, the assessee’s reply was considered carefully and the same does not have any merit. The assessee’s arguments are not convincing as the assessee is bound by Section 200(3) of the Act, 1961 to file the quarterly statements in time.

As per the provisions of Section 272A(2)(k), “if any person fails to deliver or cause to be delivered a copy of the statement within the time specified in section 200(3) or the proviso to section 206C(3), is liable to pay by way of penalty a sum (of one hundred rupees) for everyday during which the failure continues.”

2.4 F.Y. Quarter Due Date Date of No. of TDS Penalty filing days deducted leviable (delay) 2011-12 Q1 15/07/2011 29/11/2012 503 26,786 50,300 2011-12 Q2 15/10/2011 29/11/2012 411 29,970 41,100 2011-12 Q3 15/01/2012 29/11/2012 319 32,009 31,900 2011-12 Q4 15/05/2012 29/11/2012 198 2,04,680 19,800 Total 1431 2,93,445 1,43,100

The total default comes to Rs.1,43,100/- (1431 days×Rs.100 per day). In view of Section 272A(2)(k), the maximum penalty shall not exceed the amount of tax deducted/deductible. In this case, the assessee has deducted tax of Rs.2,93,445/- for the F.Y. 2011-12 as per the above table. Therefore, the penalty is levied at Rs.1,43,100/-.

ITA No. 2806/Ahd/2014 Jwala Logistic Pvt. Ltd. vs ITO. Asst.Year 2012-13 - 4 - 4. We have gone through the impugned order and heard both the parties. We have taken note of the assessee’s submission. The assessee has paid tax and there is no loss to the revenue. It is explained by the assessee that the lapse was unintentional and bonafide as he did not employ any professionally qualified person to look after all these requirements/compliances. The directors are also not being very much qualified and were not aware of the intricacies for the due dates for filing of TDS returns. It is also stated that the delay was merely of clerical in nature and there was no willful attempt to evade any tax. Assessee is not well qualified and being a small company having a shortage of staff. We are satisfied that the explanation is reasonable and deserves to be accepted.

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ITA No. 2806/Ahd/2014 Jwala Logistic Pvt. Ltd. vs ITO. Asst.Year 2012-13 - 5 -

Priti Yadav, Sr.PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-VI, Baroda. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad True Copy 1. Date of dictation .. 29/08/2017 (dictation-pad 3 pages attached at the end of this appeal- file) 2. Date on which the typed draft is placed before the Dictating Member …04/09/2017 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…06/09/2017 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………