M/s. Maulana Azad Medical College,, New Delhi v. ITO, New Delhi

CO 305/DEL/2009 | 2008-2009
Pronouncement Date: 08-01-2010 | Result: Allowed

Appeal Details

RSA Number 30520123 RSA 2009
Bench Delhi
Appeal Number CO 305/DEL/2009
Duration Of Justice 4 month(s)
Appellant M/s. Maulana Azad Medical College,, New Delhi
Respondent ITO, New Delhi
Appeal Type Cross Objection
Pronouncement Date 08-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 08-01-2010
Date Of Final Hearing 05-01-2010
Next Hearing Date 05-01-2010
Assessment Year 2008-2009
Appeal Filed On 07-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL ITA NO. 3281(DEL)/2009 ASSESSMENT YEAR : 2008-09 INCOME-TAX OFFICER M/S MAULANA AZAD MEDICAL WARD 50(4) LAXMI NAGAR VS. COLLEGE 2 B.S. ZAFAR MARG DELHI. NEW DELHI. C.O. NO. 305(DEL)/2009 (ARISING OUT OF ITA NO. 3281(DEL)/2009 ASSESSMENT YEAR : 2008-09 MAULANA AZAD MEDICAL COLLEGE INCOM E-TAX OFFICER 2 BAHADUR SHAH ZAFAR MARG VS. WARD 50(4) DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI RAJIV PANDA SR . DR ASSESSEE B Y: SHRI ANIL KUMAR C.A. ORDER PER K.G. BANSAL ; AM THE AFORESAID APPEAL AND THE CROSS OBJECTION WERE ARGUED IN A CONSOLIDATED MANNER BY THE LEARNED DR AND THE LD . COUNSEL FOR THE ASSESSEE. THEREFORE A CONSOLIDATED ORDER IS PAS SED. THE REVENUE HAS TAKEN FOUR SUBSTANTIVE GROUNDS IN THE APPEAL. GROUND NO. 1 IS THAT THE LD. CIT(APPEALS) ERRED IN HOLDING THAT THE PENAL TY U/S 272B WAS NOT ITA NO.3281(DEL)/2009& C.O. NO. 305(DEL)/2009 2 LEVIABLE AS IT DOES NOT COVER THE DEFAULT MENTIONED IN SECTION 139A(5B). IN GROUND NO. 2 IT IS MENTIONED THA T THE LD. CIT(APPEALS) ERRED IN NOT CONSIDERING THE PROVISION OF SECTION 272B(1) UNDER WHICH THE PENALTY CAN BE LEVIED FOR FAILURE TO COMPLY WITH THE PROVISION CONTAINED IN SECTION 139A. IN GROUND NO. 3 IT IS MENTI ONED THAT THE LD. CIT(APPEALS) ERRED IN HOLDING THAT DEFAULT U/S 139A(5B) IS DIFFERENT FROM DEFAULT U/S 139A WHEREAS THE FORMER PROV ISION IS A PART OF THE LATTER PROVISION. IN GROUND NO. 4 IT IS MENTION ED THAT ALTHOUGH THE TAX EFFECT IS BELOW THE PRESCRIBED LIMIT THE APPEA L IS BEING FILED AS LEGAL ISSUE IS INVOLVED. AS AGAINST THE AFORESAID TH E ASSESSEE HAS TAKEN UP 12 GROUNDS IN THE CROSS OBJECTION THE SUM AND SUBST ANCE OF WHICH IS THAT IT IS NOT FEASIBLE TO QUOTE PERMANENT ACCOUNT NU MBERS OF ALL THE DEDUCTEES AS SUCH A NUMBER MAY NOT HAVE BEEN ALLOTTED OR MAY NOT BE AVAILABLE AT THE TIME OF FILING THE TDS RETURN. IT IS F URTHER MENTIONED THAT THE PROVISION OF LAW IS NOT SO HARSH AS TO VISIT TH E LEVY OF PENALTY INVARIABLY IN ALL CASES IF THERE IS A FAILURE IN A SIN GLE CASE. IT IS ALSO MENTIONED THAT THE PROVISION IS NOT APPLICABLE IN RESPECT OF CENTRAL GOVERNMENT STATE GOVERNMENTS AND THE CONSULAR OFFICE. ITA NO.3281(DEL)/2009& C.O. NO. 305(DEL)/2009 3 2. BEFORE US THE LD. DR REFERRED TO PARAGRAP H 4 OF THE ORDER OF THE LD. CIT(APPEALS) IN WHICH IT IS MENTIONED THAT PE NALTY IS NOT LEVIABLE AS SECTION 272B DOES NOT COVER THE DEFAULT COMMI TTED U/S 139A(5B). IT WAS HIS CONTENTION THAT ALL SUB-SECTIONS OF SECT ION 139A FORM PART OF IT AND THEREFORE ALL THESE SUB-SECTIONS ARE COVE RED U/S 272B(1). THUS IT WAS ARGUED THAT THE LD. CIT(APPEALS) ERRED IN GIVING THE AFORESAID FINDING. IN REPLY THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE ASSESSEE IS A PART OF THE STATE GOVERNMENT. CLAU SE (C) OF SUB-RULE (1) OF RULE 114-C PROVIDES THAT THE PROVISIONS CONT AINED IN SECTION 139A SHALL NOT APPLY TO CENTRAL GOVERNMENT STATE GOVE RNMENTS AND CONSULAR OFFICE IN TRANSACTIONS WHERE THEY ARE THE P AYERS. THEREFORE IT WAS ARGUED THAT THE ASSESSEE COULD NOT HAVE BEEN P ENALIZED U/S 272B(1) ALSO. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE FIND THAT THE ASSESSEE NEVER TO OK THE ARGUMENT OF IT BEING A PART OF THE STATE GOVERNMENT BEFORE ANY OF TH E AUTHORITIES BELOW. NO EVIDENCE IN RESPECT OF AFORESAID FACT WAS PLACED BEFORE US ALTHOUGH IT WAS SUBMITTED THAT THE ASSESSEE CAME INTO E XISTENCE ON THE BASIS OF THE LEGISLATION OF THE STATE GOVERNMENT. EVEN IN A BSENCE OF THE EVIDENCE THAT THE ASSESSEE IS THE STATE GOVERNMENT I T CAN BE SAID THAT IT WAS ITA NO.3281(DEL)/2009& C.O. NO. 305(DEL)/2009 4 UNDER THE BONA-FIDE IMPRESSION THAT IT IS A PA RT OF THE STATE GOVERNMENT. THUS A GROUND EXISTED FOR NON-COMPLIANCE WIT H THE PROVISION CONTAINED IN SECTION 139A(5B). THEREFORE WE ARE OF T HE VIEW THAT THE LEVY OF PENALTY WAS NOT JUSTIFIED. 4. THE RESULT IS THAT THE APPEAL IS DISMISSE D AND CROSS OBJECTION IS ALLOWED AS DISCUSSED ABOVE. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 8 JANUARY 2010. SD/- SD/- (C.L. SETHI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 8TH JANUARY 2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- 1. MAULANA AZAD MEDICAL COLLEGE NEW DELHI. 2. ITO WARD 50(4) DELHI. 3. CIT 4. CIT(A) NEW DELHI. 5. THE DR ITAT NEW DELHI. ASSISTANT REGISTRAR.