TURBO TRAVELS INDIA P.LTD, MUMBAI v. ADDL CIT (TDS) RG 3, MUMBAI

ITA 4961/MUM/2014 | 2009-2010
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 496119914 RSA 2014
Assessee PAN AAACT4767G
Bench Mumbai
Appeal Number ITA 4961/MUM/2014
Duration Of Justice 2 year(s) 2 month(s) 27 day(s)
Appellant TURBO TRAVELS INDIA P.LTD, MUMBAI
Respondent ADDL CIT (TDS) RG 3, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 26-10-2016
Assessment Year 2009-2010
Appeal Filed On 30-07-2014
Judgment Text
E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI C.N. PRASAD JUDICIAL MEMBER AND SHRI RAMIT KOCHAR ACCOUNTANT MEMBER ./ I.T.A. NO. 4961 /MUM/2014 ( / ASSESSMENT YEAR : 2009-10) M/S TURBO TRAVELS INDIA PVT. LTD. 105 DOCTOR HOUSE PEDDER ROAD MUMBAI -400026. / V. THE ADDITIONAL COMMISSIONER OF INCOME TAX (TDS) RANGE 3 10 TH FLOOR SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG. CHARNI ROAD MUMBAI 400002. ./ PAN : AAACT 4767 G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY MRS. DEVMAYA KALVANI REVENUE BY : SHRI SAURABH DESHPANDE (D.R.) / DATE OF HEARING : 22-08-2016 / DATE OF PRONOUNCEMENT : 26-10-2016 / O R D E R PER RAMIT KOCHAR ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE BEING ITA NO. 4961/MUM/2014 IS DIRECTED AGAINST THE APPELLATE ORDER DATED 19 TH MAY 2014 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 14 MUMBAI (H EREINAFTER CALLED THE CIT(A)) FOR THE ASSESSMENT YEAR 2009-10 W.R.T PEN ALTY OF RS.25 065/- IMPOSED BY THE AO U/S 272A(2)(K) OF THE ACT FOR DEL AY IN FILING OF TDS RETURNS WITH THE PRESCRIBED INCOME-TAX AUTHORITY. ITA 4961/MUM/2014 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1] A] WE ARE OF THE OPINION THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 25 065/- U/ S. 272A(2) (K) OF I.T. ACT 1961. B] THE LEARNED CIT(A) HAS NOT APPRECIATED THE FACT TH AT THE DELAY IN FILING THE TDS RETURN WAS ATTRIBUTABLE TO THE FACT THAT FIL ING OF TDS RETURNS THROUGH E-PROCESS WAS IN THE INITIAL STAGE AND THAT THERE WERE DIFFICULTIES IN PREPARING AND SUBMITTING THE TDS RET URN. C] THE LEARNED CIT(A) HAS NOT APPRECIATED THE FACT THAT THERE WAS NO DELIBERATE INTENTION ON THE PART OF THE APPELLANT TO SUBMIT THE TDS RETURNS LATE AND THAT THERE IS NO LOSS CAUSED TO THE EXCHEQUER IN THE APPELLANTS FILING THE RETURNS LATE IN AS MUCH AS THE APPELLANT HAS REMITTED THE TAX ON DUE DATES. D] THE APPELLANT SUBMITS THAT THERE WAS A REASONABLE C AUSE IN SUBMISSION OF TDS RETURNS LATE AND AS SUCH THE APPELL ANT PRAYS THAT THE PENALTY SHOULD BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE A.O. ON EXAMINATION OF THE RECORDS OBSERVED THAT THE ASSESSEE HAD FILED THE TD S RETURNS AFTER THE DUE DATES WHICH WERE REQUIRED TO BE FILED AT THE END OF EVERY QUARTER. AS PER THE PROVISIONS OF SECTION 200(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER CALLED THE ACT) READ WITH RULE 31A OF THE INCOME TAX RUL ES 1962 A QUARTERLY STATEMENT OF TDS IN FORM 24Q AND 26Q WAS REQUIRED T O BE FILED BY THE ASSESSEE WITH THE PRESCRIBED INCOME-TAX AUTHORITY B Y 15 TH JULY 15 TH OCTOBER 15 TH JANUARY AND 15 TH JUNE OF THE YEAR. THE A.O. COMPILED THE DELAY IN SUBMISSION OF TDS RETURNS BY THE ASSESSEE FOR THE A SSESSMENT YEAR 2009-10 WHICH ARE AS UNDER:- QUARTER NO. OF DAYS DELAY TDS AMOUNT PENALTY AMOUNT (IN RS) 24Q2 68X100 = 6800 605200 6800 24Q3 2X100 = 200 120000 200 24Q4 2X100=200 120000 200 ITA 4961/MUM/2014 3 26-Q1 160X100 =16000 10665 10665 26-Q2 68X100 = 6800 11615 6800 26-Q3 2X100 = 200 10665 200 24-Q4 2X100 = 200 10665 200 25065 THE A.O. ISSUED SHOW-CAUSE NOTICE TO THE ASSESSEE A SKING IT TO EXPLAIN AS TO WHY PENALTY UNDER SECTION 272A(2)(K) OF THE ACT SHO ULD NOT BE LEVIED. IN REPLY TO THE ABOVE SHOW CAUSE NOTICE THE ASSESSEE SUBMIT TED THAT THE DELAY WAS DUE TO THE DELAY SUBMISSION OF TDS FORMS(24Q AND 26 Q) THROUGH E-FILING OF TDS RETURNS IN ELECTRONIC MODE WHICH WAS IN ITS INI TIAL PHASES AS EARLIER THE TDS RETURNS WERE FILED IN PHYSICAL MODE ANNUALLY AND THAT THERE WAS DIFFICULTIES IN PREPARING AND SUBMITTING THE E-TDS FORMS IN ELECTRONIC MODE. THE SUBMISSION OF THE ASSESSEE WERE CONSIDERED FOR THE FINANCIAL YEAR 2007- 08 BY THE AO AND THE PENALTY PROCEEDINGS WERE DROPP ED HOWEVER THE SUBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCEPTAB LE FOR THE FINANCIAL YEAR 2008-09 AS IT WAS OBSERVED BY THE AO THAT THERE IS A STATUTORY OBLIGATION TO FILE THE QUARTERLY RETURNS AND THE ASSESSEE HAD FAI LED TO COMPLY WITH THE PROVISIONS OF THE ACT THEREFORE THE A.O. THEREFOR E IMPOSED PENALTY OF RS.25 065/- ON THE ASSESSEE U/S 272A(2)(K) OF THE A CT. 4. AGGRIEVED BY THE PENALTY ORDER U/S 272A(2)(K) OF THE ACT OF THE A.O. THE ASSESSEE FILED ITS FIRST APPEAL BEFORE THE LD. CIT( A). 5. BEFORE THE LD. CIT(A) THE ASSESSEE FILED THE DET AILS OF TDS RETURNS FOR ALL THE FINANCIAL YEARS AND SUBMITTED THAT THE DELAY HA D OCCURRED FOR THE FIRST YEAR AND IN THE SUBSEQUENT YEARS THE ASSESSEE HAD F ILED THE TDS RETURNS ON TIME WITHOUT ANY DELAY WITH THE PRESCRIBED INCOME-T AX AUTHORITY. THE LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE ASSESSEE A ND OBSERVED THAT IN ASSESSEES CASE CLAUSE (K) OF SUB-SECTION 2 OF SECT ION 272A OF THE ACT REQUIRES A PERSON TO DELIVER OR CAUSE TO BE DELIVERED COPY O F THE TDS RETURN/STATEMENT ITA 4961/MUM/2014 4 WITHIN TIME SPECIFIED UNDER SECTION 200(3) OF THE A CT. AS PER THE PROVISIONS OF SECTION 200(3) OF THE ACT READ WITH RULE 31A A PER SON DEDUCTING TAX AT SOURCES IS REQUIRED TO PREPARE A STATEMENT IN THE P RESCRIBED FORM AND DELIVER THE SAME TO THE PRESCRIBED INCOME-TAX AUTHORITY AFT ER PAYING THE TAX DEDUCTED AT SOURCE TO THE CREDIT OF THE CENTRAL GOVERNMENT. THE LIABILITY OF ASSESSEE IS A STATUTORY AND ABSOLUTE LIABILITY. FISCAL STATUTE HA S TO BE STRICTLY CONSTRUED SO THAT NOBODY CAN AVOID THE RESPONSIBILITY OF DEPOSIT OF TAX SO DEDUCTED AND FILE THE RETURN ON TIME WITH THE PRESCRIBED INCOME-TAX A UTHORITY. THE LD. CIT(A) OBSERVED THAT BREACH OF THE PROVISIONS OF SECTION 2 00(3) OF THE ACT WILL ATTRACT PENALTY LEVIABLE U/S 272A(2)(K) OF THE ACT. THE LEA RNED CIT(A) OBSERVED THAT THE PLEA OF THE ASSESSEE THAT THE SUBMISSION OF TD S RETURNS/FORMS THROUGH ELECTRONIC MODE WAS IN ITS INITIAL PHASES AND THAT THERE WAS DIFFICULTY IN PREPARING AND SUBMITTING THE E-FORMS CANNOT BE HELD AS A GENUINE EXPLANATION FOR NOT FILING RETURN ON TIME BY THE AS SESSEE. THE LD. CIT(A) HELD THAT NO REASONABLE CAUSE HAS BEEN FURNISHED BY THE ASSESSEE FOR DELAY IN FILING THE E-TDS RETURN. THE LEARNED CIT(A) HELD TH AT THE SEVERAL CASE LAWS CITED BY THE ASSESSEE CANNOT COME TO ITS RESCUE IN VIEW OF THE CLEAR PROVISIONS OF SECTION 272A(2)(K) OF THE ACT . IT WAS OBSERVE D BY THE LEARNED CIT(A) THAT SECTION 200(3) OF THE ACT PLACES A STATUTORY MANDAT E ON EVERY PERSON TO FILE E- TDS RETURN/STATEMENTS IN PRESCRIBED FORM AND IN TH E PRESCRIBED MANNER BY THE DUE DATE AND ON BREACH OF PROVISIONS OF SECTION 200(3) OF THE ACT PENALTY IS LEVIABLE U/S 272A(2)(K) OF THE ACT. THE LD. CIT( A) ACCORDINGLY CONFIRMED THE PENALTY ORDER OF THE A.O. PASSED U/S 272A(2)(K) OF THE ACT VIDE APPELLATE ORDERS DATED 19-05-2014. 6. AGGRIEVED BY THE APPELLATE ORDERS DATED 19-05-20 14 PASSED BY THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CONCEPT OF E-FILING OF THE TDS RETURN INTRODUCED BY THE REVENUE WAS IN THE INITIAL STAGES DURING ITA 4961/MUM/2014 5 THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED ASSESSME NT AND THERE WERE DIFFICULTIES IN PREPARING AND SUBMITTING THE E-FORM S AS SEVERAL NEW CHANGES WERE INTRODUCED BY THE INCOME-TAX DEPARTMENT INCLUD ING TECHNOLOGICAL PLATFORM COMPATIBLE REQUIREMENTS . IT IS SUBMITTED THAT THE ASSESSEE HAS REMITTED THE TAX DEDUCTED AT SOURCE (TDS) ON THE DU E DATE TO THE CREDIT OF CENTRAL GOVERNMENT AND NO LOSS/PREJUDICE HAS BEEN C AUSED TO THE REVENUE IN THE LATE FILING OF THE TDS RETURNS. IT WAS SUBM ITTED THAT E-TDS RETURNS WERE FILED VOLUNTARILY BY THE ASSESSEE ALBEIT DELAY ED WITHOUT ANY NOTICE FROM REVENUE. THE TAXES WERE REMITTED TO GOVERNMENT IN T IME. THERE IS NO DELIBERATE DELAY ON THE PART OF THE ASSESSEE IN FIL ING TDS RETURN WITH THE DEPARTMENT AND THE ASSESSEE HAS NOT BENEFITTED FROM THIS TECHNICAL BREACH IN FILING TDS RETURN LATE WITH THE DEPARTMENT. IN SUPP ORT THE LD. COUNSEL PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT I N THE CASE OF HINDUSTAN STEEL LTD. V. STATE OF ORISSA (1972) 83 ITR 26(SC). THE LEARNED COUNSEL ALSO RELIED UPON HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF CIT V. HARSIDDH CONSTRUCTION (P) LTD. (2000) 244 ITR 417( GUJ.) AND ALSO THE DECISION OF THE ITAT CHANDIGARH BENCH IN THE CASE OF CORPORATION BANK V. JCIT IN ITA NO. 161/CHD/2015 WHEREBY THE FACTS WE RE IDENTICAL AND THE PENALTY WAS DELETED. THE LD. COUNSEL SUBMITTED THA T THERE WAS NO CASE FOR LEVY OF PENALTY U/S 272A(2)(K) OF THE ACT AS THE AS SESSEE HAD A REASONABLE CAUSE FOR NOT FILING THE TDS RETURN IN TIME. 8. THE LD. D.R. SUPPORTED THE ORDER OF THE AUTHORIT IES BELOW AND SUBMITTED THAT THERE WAS PROPER SYSTEM IN PLACE FOR FILING OF TDS RETURNS. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND AL SO PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAW S RELIED UPON. WE HAVE OBSERVED THAT THE PENALTY HAS BEEN IMPOSED BY THE A .O. ON THE ASSESSEE U/S 272A(2)(K) OF THE ACT OF RS. 25 065/- AS THE ASSESS EE HAS DELAYED IN FILING THE E-TDS RETURNS IN FORM NO. 24Q AND 26Q WITH THE PRES CRIBED INCOME-TAX ITA 4961/MUM/2014 6 AUTHORITY AS PER THE CHART IN THE PRECEDING PARAS . WE FIND THAT THE ASSESSEE HAS DEPOSITED THE TAXES DEDUCTED AT SOURCE (TDS) IN TIME TO THE CREDIT OF CENTRAL GOVERNMENT AND HENCE THERE WAS NO LOSS/PREJ UDICE CAUSED TO THE REVENUE. HOWEVER THERE WAS A DELAY IN FILING THE TDS RETURN AS THE SUBMISSION OF E-TDS FORMS THROUGH ELECTRONIC MODE W AS IN INITIAL STAGES AND THERE WERE DIFFICULTIES IN PREPARING AND SUBMITTING THE TDS RETURN FORMS IN FORM NO 24Q AND 26Q BY THE ASSESSEE HOWEVER TAXE S DEDUCTED AT SOURCE WERE PAID IN TIME BY THE ASSESSEE. IT IS A MATTER OF COMMON KNOWLEDGE THAT THE DEPARTMENT HAS SWITCHED OVER THE ANNUAL FILING SYSTEM OF TDS RETURNS IN MANUAL FORM TO QUARTERLY E-FILING OF TDS RETURNS IN FORM NO. 24Q AND 26Q AND IN THIS PROCESS THERE WERE VARIOUS TECHNOLOGICA L PLATFORMS / SYSTEMS TO BE PUT IN PLACE AND UPGRADED FROM TIME TO TIME . SIMI LARLY THE TAX-DEDUCTORS ALSO FACED INITIAL GLITCHES AS WELL FACED GESTATION PERIOD IN UNDERSTANDING AND ADAPTING TO NEW REGIME OF E-FILING OF TDS RETURNS I N ELECTRONIC MODE/FORMATS DURING SWITCH OVER PHASE FROM REGIME OF MANUAL FILI NG OF TDS RETURNS TO E- FILING OF TDS RETURNS IN ELECTRONIC MODE. THE ASSE SSEE HAS ALSO CLAIMED TO HAVE FACED DIFFICULTIES IN UPGRADING AND ADJUSTING TO THE NEW REGIME/ SYSTEM OF QUARTERELY E-FILING OF TDS RETURNS AND IN OUR CO NSIDERED VIEW KEEPING IN VIEW FACTS AND CIRCUMSTANCES OF THE CASE AND DETAIL ED DISCUSSIONS AS SET-OUT ABOVE PENALTY LEVIED BY THE A.O. U/S. 272A(2)(K) O F THE ACT FOR BREACH OF PROVISIONS OF SECTION 200(3) OF THE ACT IS NOT EXIG IBLE IN THIS CASE AS THE ASSESSEE HAS COME OUT WITH A PLAUSIBLE AND BONA-FID E EXPLANATION AS SET-OUT ABOVE EXPLAINING DELAY IN FILING OF THE E-TDS RETUR NS WITH THE REVENUE WHICH IN OUR CONSIDERED VIEW IS A REASONABLE CAUSE AS CON TEMPLATED U/S. 273B OF THE ACT FOR DELAY IN FILING OF E-TDS RETURNS WITH T HE PRESCRIBED INCOME-TAX AUTHORITY AND HENCE WE ORDER DELETION OF THE PENAL TY OF RS.25 065/- LEVIED BY THE A.O. U/S. 272A(2)(K) OF THE ACT AND AS CONFIRME D BY THE LD. CIT(A). WE ORDER ACCORDINGLY. ITA 4961/MUM/2014 7 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 4961/MUM/2014 FOR THE ASSESSMENT YEAR 2009-10 IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER 2016. # $% &' 26-10-2016 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 26-10-2016 [ .9../ R.K. R.K. R.K. R.K. EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED MUMBAI 4. : / CIT- CONCERNED MUMBAI 5. =>( 99?@ ?@ $ / DR ITAT MUMBAI E BENCH 6. (BC / GUARD FILE. / BY ORDER = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) $ / ITAT MUMBAI