THE MAHARASHTRA STATE CO OP MARKETING FEDERATION LTD, MUMBAI v. ADDL CIT (TDS) RG 3, MUMBAI

ITA 45/MUM/2015 | 2009-2010
Pronouncement Date: 18-10-2016

Appeal Details

RSA Number 4519914 RSA 2015
Assessee PAN AAAAT6218L
Bench Mumbai
Appeal Number ITA 45/MUM/2015
Duration Of Justice 1 year(s) 9 month(s) 12 day(s)
Appellant THE MAHARASHTRA STATE CO OP MARKETING FEDERATION LTD, MUMBAI
Respondent ADDL CIT (TDS) RG 3, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-10-2016
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 18-10-2016
Assessment Year 2009-2010
Appeal Filed On 05-01-2015
Judgment Text
IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI R.C . SHARMA A M AND SHRI SANDEEP GOSAIN JM ./ I.T.A. NO. 45 /MUM/2015 ( / ASSESSMENT YEAR: 20 09 - 1 0 ) THE MAHARASHTRA STATE CO - OP. MARKETING FEDERATION LIMIT ED KANMOOR HOUSE NARSI NATHA ST. MASJID MUMBAI - 400009 / VS. ADDL. CIT (TDS) RANGE - 3 MUMBAI - 400002 . ./ ./ PAN/GIR NO. AAAAT 6218 L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NON E / RESPONDENT BY : SHRI UDAY BHASKAR JAKKE / DATE OF HEARING : 19 /07 /2016 / DATE OF PRONOUNCEMENT : 18/10/2016 / O R D E R PER R.C. SHARMA A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 14 MU MB AI (CIT(A) FOR SHORT) DATED 14 - 10 - 2014 FOR THE ASSESSMENT YEAR (A.Y.) 20 09 - 2010 IN THE MATTER OF IMPOSITION OF PENALTY U/S 272A(2)(K) OF THE I.T. ACT 1961. 2 ITA NO. 45/2015 2. WE HAVE HEARD LD. DR AND ALSO GO NE THROUGH WRITTEN SUBMISSION S FILED BY ASSESSEE . 3. WE HAVE GONE THROUGH ORDERS OF AUTHORITIES BELOW AND FOUND THAT WHILE LEVYING PENALTY U/S 272A(2)(K) THE LD. AO OBSERVED THAT THE ASSESSEE WAS REQUIRED TO FILE FORM NO.24Q AND 26Q QUARTERLY U/S 200(3) R .W.RULE31A WHICH THE ASSESSEE HAD FILED BELATEDLY FOR ALL FOUR QUARTERS IN RESPECT OF FORM 24Q AND FOR THREE QUARTERS FOR FORM 26Q. HENCE PENALTY WAS LEVIED @ RS. 100 PER DAY FOR EACH DEFAULT. IT WAS SUBMITTED BY THE ASSESSEE BEFORE AO THAT IT WAS MANDATORY TO FILL IN PAN NUMBER OF DEDUCTEES IN THESE FORMS AS PER RULE 31A(4)(III); AND SINCE PAN WAS NOT AVAILABLE IN RESPECT OF SOME DEDUCTEES AND THERE AS WRONG PAN IN SOME CASES THERE WAS DELAY. A CIRCULAR ISSUED BY ASSESSEE TO DEDUCTEES TO SUPPLY PAN NUMBER WAS ALSO SUBMITTED. AS REGARDS DELAY IN RESPECT OF CONTRACTORS PAYMENTS IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT AWARE OF THE REQUIREMENT AND IMMEDIATELY FILED THE SAME ON BEING POINTED OUT BY AUDIT PARTY. 4. BY OBSERVING THAT ASSESSEE FAILED TO FULFI LL THE REQUIREMENT OF SECTION 200(3) WHICH WAS INSERTED WITH EFFECT FROM 01.05.2010 THE AO LEVIED PENALTY FOR DELAY IN FILING DECLARATION. BY THE IMPUGNED ORDER CIT(A) CONFIRM ED THE ACTION OF AO. 5. WE HAVE CONSIDERED CONTENTIONS OF DR AND DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THE IR IR RESPECTIVE ORDERS AS WELL AS WRITTEN SUBMISSION FILED BY ASSESSEE BEFORE US. IN THE WRITTEN SUBMISSION IT WAS 3 ITA NO. 45/2015 PROVIDED THAT THERE WAS NO LIABILITY OF ASSESSEE U/S 200(3) TO FILE STATEMEN T. THE LIABILITY HAS BEEN PROVIDED BY SECTION 200(2A) W.E.F. 1 - 6 - 15. HENCE PENALTY SHOULD BE CANCELLED SIMPLY ON THIS GROUND. IT IS FURTHER SUBMITTED THAT SECTION 272A IS APPLICABLE TO PERSON AND THE ASSESSEE IS NOT A PERSON BEING GOVT. OF INDIA ITSELF W ITHIN THE MEANING OF SECTION 2(31). THE SECTION DOES NOT IMPOSE ANY PENALTY ON PERSON RESPONSIBLE FOR DEDUCTING TAX; BUT ON PERSON IN GENERAL. HENCE PENALTY IS NOT LEVIABLE AT ALL FOR WANT OF ANY PROVISION TO IMPOSE PENALTY ON GOVT. DEPARTMENT. THE TERM PE RSON RESPONSIBLE FOR DEDUCTING TAX HAS BEEN DEFINED IN SECTION 204. THAT SECTION ALSO PROVIDED THAT GOVT. IS NOT PERSON RESPONSIBLE FOR PAYING TAX. THIS SECTION WAS AMEND W.E.F. 1 - 7 - 2012 TO PROVIDE THAT GOVT. DEPARTMENT CAN ALSO BE DEFAULTER. THIS DATE OF AMENDMENT IS AFTER THE DATE OF 26 - 12 - 11 WHEN THE LD. AO HAD PASSED ORDER LEVYING PENALTY. HENCE PENALTY WAS NOT LEVIABLE AS PER PREVAILING LEGAL PROVISIONS. 6. WE FOUND THAT NON - AVAILABILITY OF PAN WAS A REASONABLE CAUSE FOR WHICH EVIDENCE WAS ALSO SUBMIT TED BEFORE LOWER AUTHORITIES IN THE FORM OF CIRCULAR ISSUED BY ASSESSEE FOR SUPPLY OF PAN VIDE ANNEXURE A. H ENCE PENALTY SO LEVIED FOR DELAY IN FIL ING DECLARATION SHOULD BE CANCELLED ON THIS GROUND OF REASONABLE CAUSE. 7. IN VIEW OF THE ABOVE DISCUSSION W E DIRECT THE AO TO DELETE THE PENALTY SO IMPOSED U/S 272A(2)(K) OF THE I.T. ACT. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. 4 ITA NO. 45/2015 ORDER PRONOU NCED IN THE OPEN COURT ON 18 TH OCTOBER 201 6 S D/ - SD/ - ( S ANDEEP GOSAIN ) ( R.C. SHARMA) / JUD I C I AL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 18 . 1 0 .201 6 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F ILE / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBA I.