Oriental Bank of Commerce, Yamunanagar v. ITO (TDS), Panchkula

CO 31/CHANDI/2012 | 2008-2009
Pronouncement Date: 15-07-2013 | Result: Dismissed

Appeal Details

RSA Number 3121523 RSA 2012
Bench Chandigarh
Appeal Number CO 31/CHANDI/2012
Duration Of Justice 9 month(s) 17 day(s)
Appellant Oriental Bank of Commerce, Yamunanagar
Respondent ITO (TDS), Panchkula
Appeal Type Cross Objection
Pronouncement Date 15-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 15-07-2013
Date Of Final Hearing 01-07-2013
Next Hearing Date 01-07-2013
Assessment Year 2008-2009
Appeal Filed On 28-09-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NO.441/CHD/2012 (ASSESSMENT YEAR : 2008-09) THE INCOME TAX OFFICER(TDS) VS. ORIENTAL BANK O F COMMERCE AAYAKAR BHAWAN SECTOR 2 MAIN BRANCH PANCHKULA. YAMUNANAGAR. PAN: RTKO00651A AND C.O.NO.31/CHD/2012 ARISING OUT OF ITA NO.441/CHD/2012 (ASSESSMENT YEAR : 2008-09) ORIENTAL BANK OF COMMERCE VS. THE INCOME TAX OF FICER(TDS) MAIN BRANCH AAYAKAR BHAWAN SECTOR 2 YAMUNANAGAR. PANCHKULA. PAN: RTKO00651A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJEEV SHARMA DEPARTMENT BY : SMT.J.S.NAGAR DR DATE OF HEARING : 01.07.2013 DATE OF PRONOUNCEMENT : 15.07.2013 O R D E R PER SUSHMA CHOWLA J.M. : THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) KARNAL DATED 2 7.02.2012 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST THE PENALTY LEV IED U/S 272B OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). THE ASS ESSEE HAS FILED CROSS OBJECTIONS AGAINST THE APPEAL FILED BY THE REVENUE. 2 2. BOTH THE APPEAL OF THE REVENUE AND THE CROSS OBJ ECTIONS FILED BY THE ASSESSEE ON THE SIMILAR ISSUE WERE HEARD TOGETH ER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAK E OF CONVENIENCE. 3. THE REVENUE IN ITA NO.441/CHD/2012 HAS RAISED FO LLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN REDUCING T HE PENALTY LEVIED U/S 272B OF THE INCOME TAX ACT 1961 AMOUNTING TO RS.5 20 000/- FOR NON QUOTING/WRONG QUOTING OF PANS IN 53 CASES IN THE TDS RETURNS 26Q FOR THE A. Y. 2008-09. 2. THE LD. CIT (APPEALS) HAS ERRED IN LAW IN GIVING RE LIEF TO THE ASSESSEE MERELY ON THE GROUND THAT THE PENALTY CAN BE LEVIED OF RS. 10000/- ONLY IN VIEW OF THE DECISION OF THE ITAT CHANDIGARH BENCH IN THE CASE OF ITO (TDS) PANCHKULA U/S AMBALA DISTT. CO-OP MILK PRODUCERS UNION LTD DATED 05-12-2011. 3. WHILE AS PER SECTION 139A(5B) OF THE I.T.ACT 1961 REQUIRES THAT PAN OF ALL PERSONS ON BEHALF OF WHOM TAX IS DEDUCTED SHOULD BE QUOTED IN THE QUARTERLY STATEMENT. 4. WHEN PAN OF THE TAX-DEDUCTEE IS NOT GIVEN IN THE TD S RETURN TAX DEDUCTED FROM PAYMENT MADE TO HIM CANNOT BE POSTED TO THE AN NUAL STATEMENT OF TDS TO BE ISSUED TO HIM ON FORM NO. 26AS U/S 203AA OF THE I.T . ACT 1961 READ WITH RULE 31AB OF THEI.T.RULES1962.INCONSISTENCY ON THE PART OF 'TAX DEDUCTOR' UNDER CONSIDERATION HAS LED TO THE NON-POSTING IN THE PAN LEDGER OF THE DEDUCT EES WITH THE AMOUNT OF TAX DEDUCTED ON THEIR BEHALF. THE INCOME TAX DEPARTMENT WILL HAVE THEREFORE DIFFICULTY IN ALLOWING THE TDS CLAIM MADE BY HIM IN HIS OWN RETURNS OF INCOME. 5. IT IS PRAYED THAT THE ORDER OF THE LD. CIT (APPEALS ) BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GRO UNDS OF APPEAL BEFORE THE APPEAL IS HEARED. 4. THE ASSESSEE IN C.O.NO.31/CHD/2012 HAS RAISED FO LLOWING GROUNDS OF APPEAL: THAT LD CIT (A) IS NOT JUSTIFIED IN CONCURRING WITH THE ORDER OF A.O. IN IMPOSING PENALTY U/S 272B IF INCOME TAX ACT 1961 W HILE IGNORING THAT: APPELLANT BANK MADE EFFORTS TO GET THE CORRECT PAN FROM ALL THE 53 PERSONS; AND THERE IS NO PROVISION TO RECOVER THE AMOUNT OF PENALTY FROM THE SAID PERSONS FOR THEIR FAULT BY THE BANK; AND THAT THE BANK HAS MADE ALL EFFORTS TO GET THE COR RECT PAN NUMBERS BUT FAILED DUE TO LAPSE ON THE PART OF THE PERSONS/CLIENTS FOR WHICH BANK DESERVES NO PENALTY; THAT THERE IS REASONABLE CAUSE FOR FAILURE OF RES PONDENT BANK IN NOT FURNISHING THE CORRECT PAN NUMBER WITHIN GIVEN TIME. THAT THE APPELLANT CRAVES LEAVE TO ADD AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE PRESENT CRO SS APPEAL. 3 3. THE ISSUE RAISED BY THE REVENUE IS AGAINST THE O RDER OF CIT (APPEALS) IN RESTRICTING THE PENALTY LEVIED UNDER S ECTION 272B OF THE ACT FROM RS.5 30 000/- TO RS.10 000/-. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FILED E-TDS QUARTERLY STATEMENT OF DEDUCTION OF TAX IN FORM NO. 26Q RELATING TO FINANCIAL YEAR 2007-08 AND HAD DEFAULTED IN QUOTING PAN NUMBERS OF 197 DEDUCTEES. THE ASSESSEE HAD SUBMITTED PAN NUMBERS OF 37 TAX DEDUCTEES OUT OF 90 INVALID PAN NUMBERS OF TAX DEDU CTEES. DESPITE GRANT OF OPPORTUNITY THE ASSESSEE HAD DEFAULTED IN QUOTING CORRECT PAN NUMBERS OF 53 TAX DEDUCTEES AND NO CORRECTION STATE MENT WAS FILED BY THE ASSESSEE IN THIS REGARD. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE LIABLE TO PENALTY UNDER SECTION 272B OF THE ACT AND IMPOSED PENALTY OF RS.5 30 000/-. THE CIT (APPEALS) RESTRICTED THE PENALTY TO RS.10 000/- IN VIEW OF THE PROVISIONS OF SECTION 27 2B(1) OF THE ACT. 5. THE REVENUE IS IN APPEAL AGAINST THE SAID ORDER OF THE CIT (APPEALS). 6. THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST T HE SAID PENALTY LEVIED UNDER SECTION 272B OF THE ACT AT RS.10 000/- . IN THE FIRST INSTANCE THE CROSS OBJECTION FILED BY THE ASSESSEE IS DELAYED BY A PERIOD OF 99 DAYS. THE APPLICATION FOR CONDONATION OF DEL AY IN FILING THE CROSS OBJECTION BEFORE THE TRIBUNAL HAS BEEN FILED BY THE ASSESSEE WHICH IS PLACED ON RECORD. THE CONTENTION OF THE ASSESSEE I S THAT THE BANK OFFICIALS HAD RECEIVED THE APPEAL NOTICE FOR THE AB OVE SAID APPEAL ON 22.5.2012 BUT DUE TO IGNORANCE AND LACK OF LEGAL AD VICE IT COULD NOT FILE THE CROSS OBJECTION IN TIME AND HENCE THE DELAY OF 99 DAYS. THE ASSESSEE FURTHER STATED ALSO AS PER THE OFFICIAL PROCESS THE CONCERNED BRANCH MANAGER SENDS THE LEGAL MATTERS TO THE DGM REGIONAL OFFICE 4 KARNAL FOR ITS OPINION AND GUIDANCE WHICH IS EVIDEN T FROM COPY OF THE FORWARDING LETTER WRITTEN BY THE CONCERNED BRANCH M ANAGER OF YAMUNA NAGAR WHICH IS ANNEXED AS ANNEXURE A . HOWEVER THE ASSESSEE HAD FAILED TO ENCLOSE THE SAID LETTER ALONGWITH APPLICA TION MOVED FOR CONDONATION OF DELAY. IN THE FACTS OF THE PRESENT CASE WE FIND NO MERIT IN THE CONDONATION APPLICATION MOVED BY THE ASSESSE E AS THE ASSESSEE BEFORE US IS A NATIONALIZED BANK AND BANK OFFICIALS CANNOT BE SAID TO BE IGNORANT OF THE BASIC PRINCIPLES. FURTHER ALL THE BANKS HAVE THEIR SYSTEM WHEREIN LEGAL MATERS ARE TAKEN CARE OF BY THE CONCE RNED OFFICER AND SERVICES OF PROFESSIONAL ARE ALSO AVAILABLE TO THE BANK. THE ASSESSEE HAD FAILED TO ESTABLISHE ITS CASE IN THIS REGARD AN D APPLICATION MOVED FOR CONDONATION OF DELAY IN FILING THE CROSS OBJECTION IS THUS DISMISSED. EVEN WE FIND NO MERITS IN THE CROSS OBJECTION RAISE D BY THE ASSESSEE AND WE PROCEED TO DISPOSE OFF THE ISSUE ALONGWITH THE I SSUE RAISED BY THE THE REVENUE IN ITS APPEAL IN PARAS HEREINBELOW. 7. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN REL ATION TO LEVY OF PENALTY UNDER SECTION 272B OF THE ACT FOR THE DEFAU LT IN QUOTING OF PAN NUMBERS OF THE DEDUCTEES IN THE E-TDS QUARTERLY STA TEMENT FILED IN FORM NO.26Q BY THE ASSESSEE. THE ASSESSEE IN THE SAID F ORM NO.26Q RELATING TO FINANCIAL YEAR 2007-08 HAD WRONGLY QUOTED THE PA N NUMBERS IN RESPECT OF 53 DEDUCTEES. THE ASSESSEE HAD NOT FILE D THE CORRECTION STATEMENT BEFORE THE ASSESSING OFFICER OR BEFORE PA SSING OF THE ORDER OF THE CIT (APPEALS) ALSO. IN VIEW THEREOF THOUGH THE ASSESSING OFFICER LEVIED PENALTY OF RS.5 30 000/- THE SAME WAS RESTR ICTED TO RS.10 000/- BY THE CIT (APPEALS). THE PROVISIONS OF SECTION 27 2B(1) OF THE ACT PROVIDE THAT IF A PERSON FAILED TO COMPLY WITH THE PROVISION OF SECTION 139A THE ASSESSING OFFICER MAY DIRECT THAT SUCH PE RSON SHALL PAY BY WAY OF PENALTY A SUM OF RS.10 000/- . IN VIEW OF THE ABOVE SAID 5 PROVISIONS OF THE ACT WE ARE IN AGREEMENT WITH THE ORDER OF THE CIT (APPEALS) IN RESTRICTING LEVY OF PENALTY UNDER SECT ION 272B OF THE ACT AT RS.10 000/-. 8. SIMILAR ISSUE AROSE BEFORE THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASES OF VARIOUS ASSESSEES AND THE TRIBUNAL IN THE UNDERMENTIONED CASES HAD UPHELD THE LEVY OF PENALTY UNDER SECTION 272B OF THE ACT AT RS.10 000/- : SNO. NAME OF ASSESSEE ITA NO ASSTT.YEAR DATE OF DECISION 1. ITO(TDS) VS. STATE DIRECTOR SECONDARY EDUCATION CHANDIGARH 777/CHD/2012 2009-10 22.11.2012 2. ADVANCED MICRO DEVICES PVT. LTD. VS. ITO(TDS) PANCHKULA 490/CHD/2012 2006-07 26.11.2012 3. THE SARASWATI INDUSTRIAL SYNDICATE LTD. VS. ITO (TDS) PANCHKULA 830 TO 833/CHD/2012 2009-10 31.01.2013 4. THE BRANCH MANAGER VS. ITO(TDS) PANCHKULA 853 TO 855/CHD/2012 2008-09 & 2009-10 28.02.2013 9. THE LEARNED A.R. FOR THE ASSESSEE HAD ALSO FILED PAPER BOOK IN WHICH THE ORDER OF THE TRIBUNAL IN THE CASE OF ITO VS. AMBALA DISTT. CO- OP. MILK PRODUCERS UNION LTD. IN ITA NO.941/CHD/201 1 IS ATTACHED UNDER WHICH THE PENALTY OF RS.10 000/- UNDER SECTIO N 272B OF THE ACT HAS BEEN UPHELD AND IT HAS BEEN FURTHER HELD THAT T HERE IS NO PROVISION IN SECTION 272B FOR LEVY OF PENALTY @ RS.10 000/- PER DEFAULT. 10. HOWEVER THE LEARNED A.R. FOR THE ASSESSEE PLAC ED RELIANCE ON THE RATIO LAID DOWN BY THE CHANDIGARH BENCH OF THE TRIB UNAL IN THE CORPORATION BANK VS. ITO IN ITA NOS.185 TO 187/CHD/ 2013 RELATING TO ASSESSMENT YEAR 2009-10 WHEREIN VIDE ORDER DATED 16 .4.2013 THE TRIBUNAL HAD DELETED THE PENALTY LEVIED UNDER SECT ION 272B OF THE ACT AT RS.10 000/-. THE TRIBUNAL (IN THE DIFFERENT COMBIN ATION) VIDE ORDER 6 DATED 16.4.2013 HAD DELETED THE SAID PENALTY. HOWE VER IN THE EARLIER DECISIONS THE CHANDIGARH BENCH OF THE TRIBUNAL HAD UPHELD THE LEVY OF PENALTY UNDER SECTION 272B OF THE ACT LEVIED FOR DE FAULT IN FURNISHING THE PAN NUMBER TO THE EXTENT OF RS.10 000/- IN A SERIES OF DECISIONS WHICH WERE NOT TAKEN NOTE OF BY THE OTHER BENCH OF THE TRIBUNAL. WE ALSO FIND THAT THE ASSESSEE HAD DEFAULTED IN NOT BR INGING TO THE KNOWLEDGE OF THE BENCH THE SAID DECISIONS WHICH HAV E BEEN DECIDED EARLIER TO THE ORDER PASSED ON 16.4.2013. IN ANY C ASE THE PERUSAL OF THE ORDER REFLECTS THE EFFORTS BEING MADE BY THE ASSESS EE THEREIN TO COLLECT THE PAN NUMBERS OF THE DEDUCTEES AND NECESSARY DETA ILS COULD NOT BE FURNISHED AND THE TRIBUNAL THUS HELD THAT THERE WAS REASONABLE CAUSE IN NOT FURNISHING THE DETAILS AND HENCE NO PENALTY. HOWEVER THE ASSESSEE HAS FAILED TO ESTABLISH ITS CASE OF REASONABLE CAUS E FOR THE DEFAULT. IN VIEW OF THE EARLIER ORDERS OF THE TRIBUNAL ON THE A BOVE SAID ISSUE OF LEVY OF PENALTY UNDER SECTION 272B OF THE ACT WE UPHOLD THE IMPOSITION OF PENALTY UNDER SECTION 272B OF THE ACT AT RS.10 000/ -. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS DISMISSED. 11. IN VIEW OF OUR UPHOLDING THE LEVY OF PENALTY UN DER SECTION 272B OF THE ACT AT RS.10 000/- WE FIND NO MERIT IN THE CRO SS OBJECTIONS FILED BY THE ASSESSEE. THE CROSS OBJECTIONS FILED BY THE AS SESSEE ARE DISMISSED BOTH BEING DELAYED AND EVEN ON THE MERITS. 12. IN THE RESULT BOTH THE APPEAL FILED BY REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF JULY 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15 TH JULY 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR ITAT CHANDIGARH 7