ITO (TDS), Faridabad v. The Land Acquisition Officer, Faridabad

ITA 4036/DEL/2011 | misc
Pronouncement Date: 11-11-2011 | Result: Dismissed

Appeal Details

RSA Number 403620114 RSA 2011
Bench Delhi
Appeal Number ITA 4036/DEL/2011
Duration Of Justice 2 month(s) 5 day(s)
Appellant ITO (TDS), Faridabad
Respondent The Land Acquisition Officer, Faridabad
Appeal Type Income Tax Appeal
Pronouncement Date 11-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 11-11-2011
Assessment Year misc
Appeal Filed On 05-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NOS.4036 & 4037/DEL/2011 ASSESSMENT YEAR : 2009-2010 INCOME TAX OFFICER (TDS WARD) FARIDABAD. VS. THE LAND ACQUISITION OFFICER URBAN ESTATE HUDA SEC.12 FARIDABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : DR. B.R.R. KUMAR SR.DR ORDER PER I.P. BANSAL JUDICIAL MEMBER BOTH THESE APPEALS ARE FILED BY THE REVENUE. THEY AR E DIRECTED AGAINST THE TWO SEPARATE ORDERS PASSED BY THE CIT (A) DA TED 10 TH MAY 2011 IN RESPECT OF ASSESSMENT YEAR 2009-2010. IN THESE A PPEALS THE DEPARTMENT HAS CONTESTED THE DELETION OF PENALTY LEVI ED ON THE ASSESSEE UNDER THE PROVISIONS OF SECTION 272B OF THE ACT WHICH IS RS.30 80 000/- FOR THE THIRD QUARTER OF FINANCIAL YE AR 2008-09 AND RS.4 LAC FOR THE FOURTH QUARTER OF FINANCIAL YEAR 2008-0 9. THE GROUNDS OF APPEAL FOR BOTH THE YEARS ARE IDENTICAL AND READ AS U NDER:- THE LD. CIT (A) HAS ERRED IN LAW AND IN THE CIRCUM STANCES OF THE CASE IN DELETING THE PENALTY LEVIED U/S 272B OF THE IT ACT ON THE GROUNDS THAT REASONABLE EFFORTS WERE MADE BY THE APPELLANT TO OBTAIN THE PANS OF THE PERSONS TO WHOM ENHAN CED COMPENSATION HAD BEEN PAID. 2. IT IS PRAYED THAT THE ORDER OF THE LD. COMMISSIONER O F INCOME TAX (APPEALS) BE CANCELLED AND THAT OF THE ASSESSING O FFICER MAY BE RESTORED. ITA NOS.4036 & 4037/DEL/2011 2 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GRO UNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OF. 2. THE FACTS FOR BOTH THE APPEALS ARE SAME. THE ASSESSEE IS A TAX DEDUCTOR AND HOLDER OF TAX DEDUCTION ACCOUNT NO.RTK L01030B. FROM THE TDS RETURNS FILED IN FORM NO.26-Q WHICH WAS E-FI LED THE AO OBSERVED THAT THERE WAS A CONTRAVENTION OF PROVISIONS O F SECTION 139 A OF THE ACT INASMUCH AS PANS OF 308 DEDUCTEES IN RESPECT OF THIRD QUARTER OF FINANCIAL YEAR 2008-09 AND 14 DEDUCTEES I N RESPECT OF THE FOURTH QUARTER FOR FINANCIAL YEAR 2008-09 WERE NOT MENTIONED IN RESPECT OF TAX DEDUCTED AT SOURCE U/S 194LA OF THE ACT . ACCORDING TO THE AO SUB-SECTION (5B) OF SECTION 139-A REQUIRES THA T PAN OF PERSONS ON WHOSE BEHALF TAX IS DEDUCTED SHOULD BE QUOTED IN TH E QUARTERLY RETURNS THEREFORE THE ASSESSEE WAS REQUIRED TO SHOW CAUSE AS TO WHY PENALTY U/S 272B SHOULD NOT BE IMPOSED. IN RESPONSE IT WAS SUBMITTED THAT PAYMENTS FOR ENHANCED COMPENSATION WERE DISBURSED TO LAND OWNERS THROUGH CONCERNED COURTS AND THE LAND OWNERS DI D NOT MENTION THEIR PAN AND IN ALL THE DOCUMENTS SUBMITTED TO DEDUC TORS OFFICE A REQUEST WAS MADE TO THE CONCERNED COURT WHILE GIVING THE AMOUNT OF ENHANCED COMPENSATION AND FORM NO.10D THAT THE PAYME NTS MAY BE RELEASED TO THE LAND OWNER AFTER OBTAINING THEIR PAN S BUT THEIR PANS HAVE NOT BEEN PROVIDED BY THE COURT AND THAT THE Q UARTERLY RETURNS WERE NOT FILED DIRECTLY BY THE DEDUCTORS OFFICE BU T THROUGH THE AUTHORISED TIN FACILITATION CENTRE. HOWEVER THE AO HELD THAT TAX DEDUCTOR WAS NOT HAVING PANS OF ALL THE AWARDEES OF TH E COMPENSATION AND DELIBERATELY NOT QUOTED PAN WHILE FILING THE E- TDS RETURNS. THE DEDUCTOR HAS NOT ONLY CONTRAVENED THE PROVISIONS OF LA W BUT HAS ALSO TRIED TO PASS ON HIS OWN LIABILITY TO COURTS AND TIN FA CILITATION CENTRES. IN THIS MANNER THE AFOREMENTIONED PENALTY HAVE BEEN IMPOSED @ RS.10 000/- FOR EACH DEFAULT. LD. CIT (A) HAS DELETE D THE PENALTY ON THE BASIS OF DELETION OF PENALTY IN RESPECT OF FIRST AND SEC OND QUARTERS OF FINANCIAL YEAR 2008-09 WHEREIN SIMILAR PENALTY OF RS. 40 70 000/- AND ITA NOS.4036 & 4037/DEL/2011 3 2 87 000/- WERE IMPOSED AND COMMISSIONER OF INCOME-TAX (APPEALS) HAD DELETED THE PENALTY VIDE HIS ORDER DATED 18 TH NOVEMBER 2009. THE DELETION OF THOSE PENALTIES HAD COME UP FOR HEARI NG BEFORE THE ITAT IN ITA NO.468 & 469/DEL/2010 AND THOSE WERE DEC IDED VIDE ORDER DATED 22 ND JUNE 2010 VIDE WHICH THE DELETION OF PENALTY BY L D. CIT (A) IN RESPECT OF FIRST AND SECOND QUARTERS WERE UPHELD. L D. CIT (A) HAS QUOTED BOTH THE YEARS IN HIS ORDER AND RELYING UPON W HICH HE HAS DELETED THE PENALTY. THE DELETION OF PENALTY HAS BE EN UPHELD BY THE TRIBUNAL ON THE GROUND THAT RULE 114C READ WITH SEC TION 139A IS NOT APPLICABLE IN RESPECT OF ANY TRANSACTION IN WHICH STA TE GOVERNMENT IS PAYER AND IT WAS NOTED THAT IN THE PRESENT CASE ALSO TH E TRANSACTION OF MAKING DISBURSEMENT OF ENHANCED COMPENSATION IS SUCH WHE RE THE STATE GOVERNMENT IS A PAYER AND HENCE AS PER RULE 1 (1)4C THE PROVISIONS OF SECTION 139A ARE NOT APPLICABLE IN RESPE CT OF THESE TRANSACTIONS THEREFORE THE TRIBUNAL HAS DECLINED TO INTERFERE IN THE DELETION IN RESPECT OF PENALTIES LEVIED FOR THE FIRST AND SECOND QUARTERS OF FINANCIAL YEAR 2008-09. 3. A NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HOWEVER NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. AS THE MATTER HAS B EEN DECIDED BY THE LD. CIT (A) ON THE BASIS OF EARLIER OR DER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE FIRST AND SECOND QUARTER WE PR OCEEDED TO DECIDE THE PRESENT APPEALS. 4. LD. DR RELIED UPON THE ORDER OF AO. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD. D R AND HAVE ALSO GONE THROUGH THE ORDER PASSED BY THE AO AS WELL AS THE CIT (A). LD. CIT (A) IN HIS ORDER IN PARA 6.1 HAS REPRODUCED T HE ORDER OF CIT (A) IN RESPECT OF FIRST AND SECOND QUARTER OF FINANCIAL YE AR 2008-09 WHEREBY HE HAS DELETED THE PENALTY. THE SAID ORDER O F THE LD. CIT (A) WAS SUBJECT MATTER OF APPEAL BY THE DEPARTMENT AND TH E SAID APPEALS ITA NOS.4036 & 4037/DEL/2011 4 WERE DECIDED BY THE TRIBUNAL VIDE AFOREMENTIONED OR DER DATED 22 ND JUNE 2010 AND THE RELEVANT OBSERVATIONS OF THE TRIBU NAL HAVE BEEN REPRODUCED IN THE ORDER OF THE CIT (A). HOWEVER F OR THE SAKE OF CONVENIENCE THEY ARE ALSO BEING REPRODUCED HEREINBEL OW:- 7. FROM THE ABOVE RULE 114C IT IS SEEN THAT THE PROVIS IONS OF SECTION 139A ARE NOT APPLICABLE IN RESPECT OF ANY TR ANSACTION IN WHICH STATE GOVERNMENT IS A PAYER. IN THE PRESENT CA SE ALSO THE TRANSACTION OF MAKING DISBURSEMENT OF ENHANCED COMPENSATION IS SUCH WHERE STATE GOVT. IS A PAYER AND H ENCE AS PER RULE THE PROVISIONS OF SECTION 139A ARE NOT AP PLICABLE IN RESPECT OF THESE TRANSACTIONS. IN VIEW OF THIS NO INTER FERENCE IS CALLED FOR IN THE ORDER OF LD. CIT (A) WITH REGARD TO BOTH THESE QUARTERS. 6. IN VIEW OF THE ABOVE DISCUSSION WE FIND NO INFIRMI TY IN THE ORDER OF THE CIT (A) VIDE WHICH THE IMPUGNED PENALTIES HAV E BEEN DELETED. WE DECLINE TO INTERFERE. THE ORDER OF THE CIT (A) IN RESPECT OF BOTH THE AFOREMENTIONED QUARTERS IS UPHELD. 7. IN THE RESULT THE APPEALS FILED BY THE REVENUE AR E DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.11.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 11.11.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR ITAT DELHI BENCHES