ITO, New Delhi v. M/s. G.S. Enterprises, New Delhi

ITA 340/DEL/2010 | 2007-2008
Pronouncement Date: 28-05-2010 | Result: Dismissed

Appeal Details

RSA Number 34020114 RSA 2010
Bench Delhi
Appeal Number ITA 340/DEL/2010
Duration Of Justice 4 month(s) 5 day(s)
Appellant ITO, New Delhi
Respondent M/s. G.S. Enterprises, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 28-05-2010
Date Of Final Hearing 20-05-2010
Next Hearing Date 20-05-2010
Assessment Year 2007-2008
Appeal Filed On 22-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI I.P.BANSAL AND SHRI K.D.RANJAN ITA NO.340/DEL/2010 ASSESSMENT YEAR : 2007-08 INCOME-TAX OFFICER WAD 4\50(4) DELHI. VS. M/S G.S.ENTERPRISES 2970 SHALIMAR PARK EXTN. SHAHDARA DELHI-110032. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. MONA MOHANTY SR. D.R. RESPONDENT BY : SHRI R.R.GUPTA C.A. ORDER PER K.D.RANJAN AM: THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 2007 -08 ARISES OUT OF ORDER OF LD. CIT(A)-XXX NEW DELHI. 2. THE GROUNDS OF APPEAL RAISED ARE AS UNDER: (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW THE LD.CIT(A) HAS ERRED IN HOLDING THAT NO PENA LTY IS LEVIABLE UNDER SECTION 272B OF THE I.T.ACT AS THE S ECTION 272B DOES NOT COVER THE DEFAULTS COMMITED UNDER SUB-SECT ION (5B) OF SECTION 139A. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW THE LD.CIT(A) HAS ERRED IN OVERRULING PROVISION OF SECTION 272B(1) WHICH STATES THAT IF A PERSON FAILS TO COMP LY WITH THE PROVISIONS OF SECTION 139A THE A.O. MAY DIRECT THA T SUCH PERSON SHALL PAY BY WAY OF PENALTY A SUM OF TEN T HOUSAND RUPEES. 2 (III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN HOLDING DEFAULT OF SUB-SECTI ON 5B OF SECTION 139A AS DIFFERENT FROM DEFAULT OF SECTION 1 39A WHEREAS SECTION 139A(5B) IS A PART OF SECTION 139A. (IV) THOUGH THE REVENUE EFFECT IS RS.10 000/- ONLY WHICH IS LESS THAN THE LIMIT PRESCRIBED BY THE BOARD SINCE THE LE GAL ISSUES ARE INVOLVED IN THIS CASE APPEAL TO THE ITAT IS BEING F ILED IN VIEW OF THE CLAUSE (A) OF PARA 8 OF THE BOARD INSTRUCTIO N NO.05/2008 DATED 15/5/2008. 3. THE ONLY ISSUE FOR CONSIDERATION RELATES TO DELE TING THE PENALTY OF RS.10 000/- IMPOSED U/S 272B OF THE ACT. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSING OFFICER ON PERUSAL OF TDS RETURN NOTICED THAT THE ASSESSEE COMPANY IN ITS TDS RETURN HAD FILED DA TA OF FIVE DEDUCTEES TO WHOM SUCH SUMS WERE PAID BUT THE PAN OF DEDUCTEES A S SHOWN BY DEDUCTORS IN TDS RETURN WERE INVALID. THE ASSESSING OFFICER THEREFORE IMPOSED PENALTY U/S 272B OF THE ACT AMOUNTING TO RS .10 000/-. 4. ON APPEAL BEFORE THE LD. CIT(A) IT WAS SUBMITTE D THAT THERE WAS ONLY ONE DEDUCTEE AND DEDUCTION WAS MADE FIVE TIMES DURI NG THE QUARTER BUT THE ASSESSING OFFICER HAD WRONGLY OBSERVED FIVE DEDUCTE ES. IT WAS FURTHER SUBMITTED THAT PAN WAS NOT QUOTED ON TDS RETURN WHE REAS THE ASSESSING OFFICER HAD WRONGLY OBSERVED THAT THE PAN QUOTED WA S INVALID WITH MALA FIDE INTENTION. THERE WAS NO FAULT ON THE PART OF T HE ASSESSEE AND THE DEDUCTEE HAD NOT FURNISHED ANY PAN ON THE PRETEXT T HAT ITS INCOME WAS BELOW TAXABLE LIMIT WHO WAS HANDLING THE TRUCK INDI VIDUALLY. THE ASSESSEE COMPLIED WITH TDS PROVISIONS TO THE BEST OF HIS KNO WLEDGE I.E. THE TAX AT SOURCE WAS DEDUCTED AND DEPOSITED IN TIME. THE ASSE SSEE FILED TDS RETURN IN TIME. RELIANCE WAS PLACED ON DECISION OF HON'BLE SU PREME COURT WHEREIN IT WAS HELD THAT WHEN THERE WAS NO MALAFIDE INTENTION AND NO LOSS TO REVENUE 3 THEN THE TECHNICAL FAULT ON THE PART OF THE ASSESSE E MIGHT BE CONDONED. RELIANCE WAS ALSO PLACED ON THE DECISION IN THE CAS E OF R.B.JODHAMAL KOTHIALA V. CIT 82 ITR 570 (SC). THE LD. CIT(A) CO NSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE. SHE WAS IN AGREEM ENT WITH THE CONTENTION OF THE ASSESSEE THAT PENALTY U/S 272B WAS NOT IMPOS ABLE FOR VIOLATION OF PROVISIONS OF INCOME TAX ACT 1961 READ WITH SEC. 1 39(5B) OF THE I.T.ACT. SHE THEREFORE CANCELLED THE PENALTY OF RS.10 000/ - IMPOSED BY THE ASSESSING OFFICER. 5. BEFORE US THE LD. SR. D.R. SUPPORTED THE ORDER OF ASSESSING OFFICER. ON THE OTHER HAND THE LD. A.R. OF THE ASSESSEE SUP PORTED THE ORDER OF LD. CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE THE PENAL TY IMPOSED IS RS.10 000/-. WHICH IS LESS THAN RS. 2 LACS THEREFORE AS PER C. B.D.T. INSTRUCTION NO.5 DATED 16.7.2007 APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 9. IN THE RESULT APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY 2010. SD/- SD/- (I.P.BANSAL ) (K.D.RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28.05.2010. PSP 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR