The Branch Manager, Cuttack v. Addl.CIT(TDS), Bhubaneswar, Bhubaneswar

ITA 186/CTK/2013 | 2008-2009
Pronouncement Date: 10-10-2013 | Result: Allowed

Appeal Details

RSA Number 18622114 RSA 2013
Assessee PAN ETHAN2781D
Bench Cuttack
Appeal Number ITA 186/CTK/2013
Duration Of Justice 6 month(s) 20 day(s)
Appellant The Branch Manager, Cuttack
Respondent Addl.CIT(TDS), Bhubaneswar, Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 10-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 10-10-2013
Date Of Final Hearing 07-10-2013
Next Hearing Date 07-10-2013
Assessment Year 2008-2009
Appeal Filed On 21-03-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI P.K.BANSAL(ACCOUNTANT MEMBER) AND SHRI D.T.GARASIA (JUDICIAL MEMBER) I.T.A NO. 186/CTK/2013 ASSESSMENT YEAR:2008-09 THE BRANCH MANAGER STATE OF BANK OF INDIA BUXI BAZAR BRANCH CUTTACK-753001 TA NO.BBNB 00132 G VS ADDL. CIT (TDS) AAYAKAR BHAVAN RAJASWA VIHAR BHUBANESWAR. APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY : SHRI S.C.MOHANTY DATE OF HEARING: 07/10/2013 DATE OF PRONOUNCEMENT: 10 /10/2013 O R D E R PER BENCH: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE FOR ASS ESSMENT YEAR 2008-09 AGAINST ORDER DATED 18.12.2012 OF LD CIT(A) ON THE FOLLOWING GROU NDS: 1. THAT THE LD CIT(A) CUTTACK IS NOT JUSTIFIED IN CONFIRMING ORDER OF THE AO IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LD CIT(A) SHOULD HAVE CONSIDERED THE WR ITTEN SUBMISSION OF THE APPELLANT THAT IT IS PURELY TECHNICAL NATURE AND NE WLY INTRODUCED ACT FOR WHICH THE APPELLANT IS NOT CONVERSANT. 3. THAT THE LD CIT(A) SHOULD HAVE CONSIDERED THAT T HERE WAS REASONABLE CAUSE OF DELAY IN FURNISHING STATEMENT IN FORM 26Q AND THERE WAS NO REVENUE LOSS TO THE DEPARTMENT AT ALL. 4. THAT THE PENALTY LEVIED IS HIGHLY EXCESSIVE AND ARBITRARY BEING PERSONAL LIABILITY OF THE APPELLANT WHO WOULD SUFFER WITHOUT FAULT. F OR SUBMISSION OF FORM 26Q 2 I.T.A NO. 186/CTK/2013 ASSESSMENT YEAR:2008-09 NUMBER OF DETAILS INCLUDING PAN OF CUSTOMER ETC AN D PERSONS LIKE NSDL AUTHORITIES/LEGAL COUNSEL REQUIRED WHICH IS THE BEY OND THE CONTROL OF THE APPELLANT. 2. ALL THE ABOVE GROUNDS ARE INTERCONNECTED THEREF ORE DISPOSED OF BY THIS APPEAL. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ADDL.CI T (TDS) FOUND FROM THE DATABASE OF THE DEPARTMENT THAT THE QUARTERLY E-TDS RETURN FOR ALL THE FOUR QUARTERS OF F.Y. 2008-09 HAVE BEEN FILED ON THE DATES MENTIONED BELOW: FINANCIAL YEAR QTR/FORM NO. DUE DATE DATE OF FILING DELAY (IN DAYS) TDS (RS) PENALTY(RS.) 2008 - 09 1 ST /26Q 15.7.08 10.11.10 848 8807 8807 - DO - 2 ND /26Q 15.10.08 10.11.10 756 13 946 13 946 - DO - 3 RD /26Q 15.1.09 10.11.10 664 80 297 66 400 - DO - 4 TH /26Q 15.6.09 10.11.10 513 16 091 16 091 TOTAL 2781 119 141 105 244 4. AS PRIMA FACIE IT WAS A FIT CASE FOR INITIATION OF PENALTY PROCEEDINGS ADDL. CIT (TDS) ISSUED NOTICE UNDER SECTION 274 TO THE ASSESSEE-DED UCTOR ON 30.9.2010. IN REPLY TO SHOW CAUSE NOTICE THAT THE DELAY FOR CAUSE OF FILING E-TDS IS NOT INTENTIONAL BUT DUE TO UNAWARENESS OF KNOWLEDGE NON-AVAILABILITY OF PARTIES PAN NUMBERS PRESSURE OF BANKS ACCOUNTING WORKS LONG ABSENCE OF BRANCH MANAGER DUE TO UNHEALTHY CONDITIO N. IT WAS SUBMITTED THAT DUE TO ABOVE ASSESSEE DID NOT FILE E-TDS RETURN IN TIME. THE AD DL. CIT (TDS) REFERRING TO SECTION 272(2)(K) AND RULE 31A HELD THAT THE GROUND TAKEN BY THE ASS ESSEE IS NOT ACCEPTABLE AS SAME CANNOT BE A REASON FOR NON-FULFILLING OF STATUTORY OBLIGATION . HE THEREFORE IMPOSED PENALTY OF RS.1 05 244/- UNDER SECTION 272A(2)(K) OF THE ACT. 3 I.T.A NO. 186/CTK/2013 ASSESSMENT YEAR:2008-09 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVE R AN ADJOURNMENT APPLICATION WAS FILED. SINCE THE ISSUE CAN BE DECIDED ON MERITS W E PROCEED TO DISPOSE OF THE APPEAL EXPARTE AFTER HEARING LD D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 6. LD D.R. SUBMITTED THAT THERE IS A DELAY OF 848 D AYS IN THE FIRST QUARTER 756 DAYS IN SECOND QUARTER 664 DAYS IN THIRD QUARTER AND 513 D AYS IN 4 TH QUARTER OF FINANCIAL YEAR 2008-09 IN FILING E-TDS RETURN. THE PENALTY HAS BEEN IMPOS ED AS ASSESSEE HAS NOT SHOWN ANY REASONABLE CAUSE TO EXPLAIN THE DELAY. THE EXPLANA TION GIVEN BY THE ASSESSEE FOR NON-FILING OF E-TDS RETURN IS NOT ACCEPTABLE THEREFORE THERE W AS NO REASONABLE CAUSE NOT TO FILE E-TDS RETURNS BY THE ASSESSEE FOR MORE THAN 2781 DAYS IN ALL THE FOUR QUARTERS. HE THEREFORE URGED TO UPHELD THE ORDER OF LD CIT(A). 7. HAVING HEARD LD D.R . WE HAVE GONE THROUGH THE O RDERS OF AUTHORITIES BELOW. WE FIND FROM THE SUBMISSION OF THE ASSESSEE BEFORE LD CIT(A ) THAT ASSESSEE HAS TAKEN THE CONTENTION THAT TDS WORK IS USUALLY ENTRUSTED TO A STAFF OR JU NIOR OFFICER FOR EXPENDING SUBMISSION OF STATEMENT TO THE CENTRAL GOVERNMENT THROUGH NSDL ( B) SECTION 272A(2)(K) HAS BEEN NEWLY INTRODUCED W.E.F. 1.4.2005. THE BRANCH MANGER WAS NOT KNOWN TO THESE TECHNICAL FORMALITIES. THEREAFTER THE BANK HAS ENGAGED AN ADVOCATE FOR PR EPARING STATEMENT WHO FOUND DIFFICULTY IN COMPLETING THE DETAILS STATEMENT IN ABSENCE OF PAN OF ALL CUSTOMERS WHERE TDS WAS MADE AND FORM NO.15G 15H. THEREFORE THERE WAS DELAY IN FI LING THE STATEMENT TO INCOME TAX DEPARTMENT. 4 I.T.A NO. 186/CTK/2013 ASSESSMENT YEAR:2008-09 8. WE HAVE GONE THROUGH THE PENALTY ORDER WHICH ST ATES THAT IN FINANCIAL YEAR 2008-09 IN ALL FOUR QUARTERS DUE DATE OF 1 ST QUARTER WAS 15.7.2008 ASSESSEE HAS FILED RETURN O N 10.11.2010 AND THERE WAS DELAY OF 848 DAYS AND TD S WAS RS.8807/-. THEREFORE SAME AMOUNT OF PENALTY WAS IMPOSED. IN THE 2 ND 3 RD AND 4 TH QUARTER THERE WAS DELAY ABOUT 756 664 AND 513 DAYS RESPECTIVELY AND THE AMOUNT OF TDS WA S RS. 13 946 RS.80 297 AND RS.16 091/- AND SAME AMOUNT OF PENALTY WAS IMPOSED IN THE ALL T HE QUARTERS. WE FIND FROM THE ORDER THAT ASSESSEE IS A NATIONALIZED BANK AND COMMITTED A TEC HNICAL DEFAULT BY NOT FILING E-TDS RETURN IN TIME. IT IS THE CASE OF THE ASSESSEE THAT SECTION 272A(2)(K) HAS BEEN INTRODUCED W.E.F. 1.4.2005 AND ASSESSEE WAS COMPLETELY IGNORANT ABOUT PROVISIONS OF LAW. MOREOVER THIS WAS A TECHNICAL IN NATURE AND DDO WAS NOT CONVERSANT WITH THE SUBMISSION OF STATEMENT WITH THE I.T. DEPARTMENT AFTER DULY INTRODUCTION OF SECTION 272A(2)(K). THUS THERE WAS A DELAY IN FILING THE STATEMENT. WHEN THE BANK MANAGER KNEW THIS TEC HNICAL FLAW HE ENGAGED AN ADVOCATE FOR EXPENDING THE STATEMENT TO I.T. AUTHORITIES THROUGH NSDL. THE ADVOCATE WHO WAS ENGAGED WITH THE JOB FOR PREPARING STATEMENT FOUND DIFFICUL T IN COMPLETING THE DETAILS SUBMISSION IN ABSENCE OF PAN OF ALL CUSTOMERS AT THE RELEVANT TIM E. THEREFORE THE ADVOCATE HAS TAKEN TIME TO GET THIS INFORMATION. MOREOVER THERE ARE FREQU ENT TRANSFERS OF BRANCH MANAGER AND OTHER STAFF FOR WHICH THERE WAS DELAY IN SUBMITTING THE STATEMENT TO I.T AUTHORITIES. WE FIND THAT AS PER SECTION 273B NO PENALTY IS LEVIABLE ON THE ASS ESSEE FOR ANY FAILURE IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. WE ARE OF THE VIEW THAT ASSESSEE HAD REASONABLE CAUSE AS NARRATED ABOVE FOR NON-FILING OF THE RETUR N. 9. WE FIND THAT HONBLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LTD VS. STATE OF ORISSA 83 ITR 26 HELD THAT PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED 5 I.T.A NO. 186/CTK/2013 ASSESSMENT YEAR:2008-09 DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CO NDUCT CONTUMACIOUS OR DISHONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WI LL NOT BE IMPOSED BECAUSE IT IS LAWFUL TO DO SO. THEREFORE FOLLOWING THE DECISION OF HONBLE SUPREM E COURT IN THE CASE HINDUSTAN STEEL LTD (SUPRA) WE ARE OF THE VIEW THAT ASSESSEE HAS REASO NABLE CAUSE FOR NON-FILING THE E-TDS RETURN IN TIME. WE ALSO FIND THAT THIS IS A TECHNICAL BRE ACH OF LAW AND THERE IS NO LOSS TO THE REVENUE. IN VIEW OF THIS IN THE INTEREST OF JUSTICE AND FAI R PLAY AND WHEN ASSESSEE IS A NATIONALIZED BANK WE ARE OF THE VIEW THAT LENIENT VIEW SHOULD BE TAKE N. THEREFORE WE DELETE THE PENALTY OF RS.1 05 244/- IMPOSED BY THE AO AND CONFIRMED BY LD CIT(A). 10. IN THE RESULT APPEAL FILED BY ASSESSEE IS ALLO WED. PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER 2013 SD/- (P.K.BANSAL) (ACCOUNTANT MEMBER) SD/- (D.T.GARASIA) (JUDICIAL MEMBER) CUTTACK: DATED 10 /10/2013 PARIDA COPY TO: 1. THE APPELLANT : THE BRANCH MANAGER STATE OF B ANK OF INDIA BUXI BAZAR BRANCH CUTTACK 2. THE RESPONDENT: ADDL. CIT (TDS) AAYAKAR BHAV AN RAJASWA VIHAR BHUBANESWAR. 3. COMMISSIONER OF INCOME TAX (APPEAL) CUTTACK 4. COMMISSIONER OF INCOME TAX CUTTACK 5. DEPARTMENTAL REPRESENTATIVE ITAT CUTTACK //TRUE COPY// BY ORDER SR.PS ITAT CUTTACK