The ITO,TDS-4,, Ahmedabad v. Naresh Diamond, Bhavnagar

ITA 3410/AHD/2009 | 2007-2008
Pronouncement Date: 29-07-2011 | Result: Dismissed

Appeal Details

RSA Number 341020514 RSA 2009
Assessee PAN LAYOF3101D
Bench Ahmedabad
Appeal Number ITA 3410/AHD/2009
Duration Of Justice 1 year(s) 7 month(s) 5 day(s)
Appellant The ITO,TDS-4,, Ahmedabad
Respondent Naresh Diamond, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-07-2011
Date Of Final Hearing 09-06-2011
Next Hearing Date 09-06-2011
Assessment Year 2007-2008
Appeal Filed On 24-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI T. K. SHARMA JUDICIAL MEMBER AND SHRI A. K. GARODIA ACCOUNTANT MEMBER I.T.A. NO. 3410/ AHD/2009 (ASSESSMENT YEAR 2007-08) ITO TDS-4 AHMEDABAD VS. NARESH DIAMOND PLOT NO.6-B BOR TALAV ROAD BHAVNAGAR TAN : AHMN 02638G (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SUMIR TEKRIWALA SR. DR RESPONDENT BY: SHRI S N DIVATIA AR O R D E R PER SHRI A. K. GARODIA AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A)- X AHMEDABAD DATED 03.09.2009 FOR THE ASSESSMENT YE AR 2007-08. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. CIT(A) ERRED IN LAW AS WELL AS FACTS OF THE CASE IN DELETING THE PENALTY ORDER PASSED U/S.272A(2) (K) O F THE I T ACT OF RS.3 10 1007- FOR A.Y. 2007-08 BY THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 4. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD.CIT(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EFFECT. 2. THE BRIEF FACTS OF THE CASE TILL THE STAGE OF IM POSITION OF PENALTY BY THE A.O. ARE NOTED BY LD. CIT(A) IN PARA 5 OF HIS ORDER WHICH IS BEING REPRODUCED BELOW: BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE APPELLANT IS A PARTNERSHIP. FIRM WORKING UNDER THE NAME AND STYLE OF M/S NARESH DIAMOND AND IT IS ENGAGED IN THE BUSINESS OF DIAMON D CUTTING AND POLISHING ON JOB WORK BASIS. THE ADDL. GIT TDS RAN GE AHMEDABAD ASCERTAINED FROM THE APPELLANT'S RECORDS FOR THE F. Y.2006-07 THAT IT WAS REQUIRED TO FILE RETURNS IN FORM NO.24Q I.E. QU ARTERLY STATEMENT OF DEDUCTION OF TAX AT SOURCE IN RESPECT OF SALARY AND THE STATEMENT OF DEDUCTION OF TAX IN RESPECT OF PAYMENTS OTHER THAN SALARY IN FORM NO.26Q UNDER THE PROVISIONS OF SEC. 200(3) OF THE A CT. THE A.O. FROM THE RECORDS ASCERTAINED THAT THERE WAS A DEFAULT OF 3101 DAYS IN RESPECT OF FORM NO.24Q AND 3101 DAYS IN RESPECT OF FORM NO. 26Q. IN VIEW OF THIS SHE ISSUED A SHOW CAUSE NOTICE TO THE APPELLAN T ASKING AS TO WHY PENALTY SHOULD NOT BE LEVIED ON IT FOR SUCH DEFAULT UNDER THE PROVISIONS OF SEC.272A(2)(K). IN RESPONSE THEREOF NO REPLY WAS FILED BY THE APPELLANT. IN VIEW OF THIS THE A.O LEVIED THE PENAL TY FOR THE AFORESAID DEFAULT RS.100/- PER DAY FOR THE DAYS OF DEFAULT NU MBERING 6202 DAYS (3101 +3101). 3. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATER IN APPEAL BEFORE LD. CIT(A). IT WAS HELD BY THE LD. CIT(A) THAT SO FAR THE FILLING OF FORM NO.24Q IS CONCERNED THE SAME WAS NOT REQUIRED TO BE FILED BECAUSE SALARY PAID TO VARIOUS EMPLOYEES WAS NOT IN EXCESS OF RS.1 LAC DUR ING THE RELEVANT PERIOD. ON THIS ASPECT NO GROUND HAS BEEN RAISED BY THE RE VENUE AND HENCE THIS ASPECT IS NOT IN DISPUTE BEFORE US. REGARDING LATE FILING OF FORM 26Q THIS IS A CONTENTION RAISED BY THE ASSESSEE BEFORE LD. CIT(A) THAT THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT AFTER TIMELY PAYMENT OF TDS AFTER DEDUCTION THE ASSESSEE WAS NOT REQUIRED TO FILE QUARTERLY RETURN IMMEDIATELY. RELIANCE WAS PLACED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COUR T RENDERED IN THE CASE OF HARSH CONSTRUCTION PVT. LTD. 244 ITR 417. LD. C IT(A) HAS DELETED THIS II I.T.A.NO. 3410 /AHD/2009 3 PENALTY ALSO BY FOLLOWING THIS JUDGEMENT OF HON'BLE GUJARAT HIGH COURT. NOW THE REVENUE IS IN APPEAL BEFORE US. 4. LD. D.R. SUPPORTED THE PENALTY ORDER WHEREAS LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). IT WAS ALSO SUBMITTED BY HIM THAT DEDUCTION OF TAX AT SOURCE WAS MADE BY THE ASSESSEE CORRECTLY AND THE S AME WAS PAID ALSO TO THE DEPARTMENT. REGARDING LATE FILING OF QUARTERLY RE TURN IT WAS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT IT WAS NOT REQUIRED TO FILE SUCH RETURN IN FORM 26Q AFTER THE END OF THE QUARTER OF THE RELEVANT PERIOD IMMEDIATELY. IT WAS ALSO SUBMITTED THAT DELAY IN FILING OF FORM 26Q SHOULD BE CONSIDERED AS VENIA L BREACH OF LAW AND PENALTY SHOULD BE DELETED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENTS CITED BY THE LD. A.R. OF THE ASSESSEE. W E FIND THAT IT IS NOTED BY THE ADDL. CIT IN THE PENALTY ORDER THAT THERE IS DE LAY OF 3101 DAYS IN FILING THE FORM 26Q. REGARDING DELAY IN FILING OF THESE F OUR QUARTERLY RETURNS WHICH WERE DUE ON 15.7.2006 10.10.2006 15.1.2007 AND 15.6.2007 IT IS NOTED BY HIM THAT THE SAME ARE NOT FILED. WHEREAS IT HAS BEEN SUBMITTED BY THE ASSESSEE BEFORE THE LD. CIT(A) THAT TDS RETURN IN FORM 26Q WAS FILED WITH THE DEPARTMENT BUT INTERESTINGLY THE DATE OF F ILING OF THESE FORMS WITH THE DEPARTMENT IS NOT MADE AVAILABLE TO THE LD. CIT (A) ALSO BECAUSE THERE IS NO SUCH MENTION IN THE ORDER OF LD. CIT(A) AS TO WH EN THESE RETURNS WERE FILED BEFORE THE A.O. IN THE PAPER BOOK FILED BEFO RE US THE ASSESSEE HAS SUBMITTED COPY OF THE FORM 26Q FOR THESE FOUR QUART ERS OF THE FINANCIAL YEAR 2006-07 ALONG WITH PROVISIONAL RECEIPT FOR FILING T HE SAME. AS PER THE SAME ALL THESE FOUR QUARTERLY RETURNS WERE FILED ON 25.0 2.2009 WHEREAS PENALTY ORDER IS DATED 28.01.2009 AND HENCE IT IS SEEN THA T THESE RETURNS WEE FILED BY THE ASSESSEE WITH THE DEPARTMENT ONLY AFTER PENALTY HAS BEEN IMPOSED BY THE I.T.A.NO. 3410 /AHD/2009 4 ADDL. CIT AS PER THE ORDER DATED 28.01.2009 WHEREAS THE FIRST SHOW CAUSE NOTICE WAS ISSUED BY HIM TO THE ASSESSEE ON 24.07.2 008 AND THE 2 ND SHOW CAUSE NOTICE WAS ISSUED BY HIM ON 15.12.2008. ON THIS ASPECT IT IS THE SUBMISSION OF THE ASSESSEE THAT IN THESE TWO NOTICE S WRONG SECTION WAS MENTIONED. OUR ATTENTION WAS DRAWN TO PAGE NO.35 O F THE PAPER BOOK WHICH IS A LETTER DATED 09.01.2009 ISSUED BY THE A.O. TO THE ASSESSEE ADMITTING MENTIONING OF WRONG SECTION 272A(2)(C) INSTEAD OF S ECTION 272A(2)(K). THEREAFTER THE PENALTY ORDER WAS PASSED ON 28.01.2 009 AND THE ASSESSEE FILED ALL QUARTERLY RETURNS ON 25.02.2009. IT IS S UBMITTED THAT SOME TIME IS REQUIRED TO GET THE RETURNS READY. UNDER THESE FAC TS WE ARE OF THE CONSIDERED OPINION THAT PENALTY IS NOT JUSTIFIED FOR THIS DEFA ULT OF THE ASSESSEE IN FILING THE QUARTERLY RETURNS LATE. WE THEREFORE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 7. IN THE RESULT APPEAL OF THE REVENUE STANDS DISM ISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011. SD./- SD./- (T. K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 29 TH JULY 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD 6. THE GUARD FILE I.T.A.NO. 3410 /AHD/2009 5 1. DATE OF DICTATION. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER.. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..