ROHIT LALIT SANGHAVI, MUMBAI v. ASST CIT RG (3), MUMBAI

ITA 5252/MUM/2014 | 2010-2011
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 525219914 RSA 2014
Assessee PAN AAGPS3917E
Bench Mumbai
Appeal Number ITA 5252/MUM/2014
Duration Of Justice 2 year(s) 1 month(s) 8 day(s)
Appellant ROHIT LALIT SANGHAVI, MUMBAI
Respondent ASST CIT RG (3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-09-2016
Assessment Year 2010-2011
Appeal Filed On 19-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 5252/MUM/2014 ASSESSMENT YEAR: 2010-11 SHRI. ROHIT LALIT SANGHAVI. (PROP. OF LALIT KALAMANDIR) SWADESHI MARKET 48 HAMMI GAILI KALBADEVI ROAD MUMBAI- 400 002. PAN:- AAGPS3917E VS. THE ACIT RANGE (3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. RUTUJA N. PAWAR. RESPONDENT BY : SHRI. NITIN WAGHMODE. DATE OF HEARING: 1 9 /07/ 2016 DATE OF PRONOUNCEMENT: 28/09/20 16 O R D E R PER RAM LAL NEGI JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST ORDER DATED 15/05/2014 PASSED BY THE LD. CIT(APPEALS)-14 MUMBAI FOR THE ASST. YEAR 2010-11 WHEREBY THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 272A(2)(K) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE A.O ON EXA MINATION OF RECORDS NOTED THAT THE ASSESSEE HAD NOT FILED THE QUARTERLY TDS S TATEMENT IN FORM NO. 26Q WITHIN THE TIME SPECIFIED U/S 206/206C OF THE A CT READ WITH RULE 37 2 ITA NO 5252/MUM/2014 ASSESSMENT YEAR: 2010-11 OF THE INCOME TAX RULES 1962 (IN SHORT THE RULES ) FOR THE A.Y. 2009-10 WHICH WAS REQUIRED TO BE FILED AT THE END OF THE EV ERY YEAR QUARTER. ACCORDINGLY THE ASSESSING OFFICER ISSUED SHOW-CAUS E NOTICE AND AFTER HEARING THE ASSESSEE IMPOSED PENALTY OF RS. 43619/- U/S 272A(2)(K) OF THE ACT. THE ASSESSEE CHALLENGED THE SAID ORDER BEFORE THE LD. CIT(A) WHO HAD AFTER HEARING THE ASSESSEE DISMISSED THE SAME. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER PASS ED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)-14 MUMBAI ERRED IN CONFIRMING THE PENALTY OF RS. 43 61 9/- U/S 272A(2)(K) LEVIED BY THE LEARNED INCOME TAX OFFICER (TDS)-3(1) MUMBAI. 1.1 YOUR APPELLANT SUBMITS THAT YOUR APPELLANT HAS DEDUCTED THE TAX AND PAID WITHIN THE TIME ALLOWED AND AS SUC H AS CIT(A) OUGHT TO HAVE CONSIDERED THIS AND OUGHT NOT TO HAVE CONFIRMED THE PENALTY FOR LATE FILING THE RETURN OF TDS. 1.2 YOUR APPELLANT SUBMITS THAT THE PENALTY OF RS. 43 619/- LEVIED BY THE ITO(TDS)-3(1) BE DELETED IN FULL. 3. BEFORE US THE LD. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT SINCE THE ASSESSEE HAD CHANGED HIS ACCOUNTANT DURING THE RELEVANT PERIOD HE WAS NOT AWARE WHETHER THE STATEMENT HAD BEEN FILED OR NOT AND DUE TO THIS REASON TDS STATEMENT COULD NOT BE FILED WITHIN THE PRESCRIBED PERIOD THOUGH THE TDS HAD BEEN DEDUCTED AND PAID IN TIME. THE LD. AR RELYING ON THE LAW LAID DOWN BY THE HONBLE SUPREME COURT I N THE CASE OF HINDUSTAN STEEL LTD. VS. STATE OF ORISSA (1972) 83 ITR 0026 SUBMITTED THAT THE IMPUGNED ORDER IS NOT IN ACCORDANCE WITH THE LA W LAID DOWN BY THE 3 ITA NO 5252/MUM/2014 ASSESSMENT YEAR: 2010-11 HONBLE SUPREME COURT IN THE SAID CASE THEREFORE THE SAME IS LIABLE TO BE SET ASIDE. 4. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENT ATIVE SUBMITTED THAT THE ASSESSEE HAS FAILED TO DISCHARGE STATUTORY DUTY TO FILE THE STATEMENT AS REQUIRED UNDER THE LAW. SECONDLY THE ASSESSEE HAS FAILED TO PROVE REASONABLE CAUSE FOR HIS FAILURE. THEREFORE THE LD .CIT(A) HAS RIGHTLY CONFIRMED THE PENALTY LEVIED U/S 272(2)(K) OF THE A CT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE DOCUMENTS ON RECORD IN THE LIGHT OF THE RIVAL CONTENTIONS. SE CTION 273B OF THE ACT READS AS UNDER:- NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISI ONS OF CLAUSE (B) OF SUB-SECTION(1)OF SECTION 271 SECTION 271A SECTION 271AA SECTION 271B SECTION 271BA SECTION 271BB SECTION 271C SECTION 271 CA SECTION 271D SECTION 271E SECTION 271F SECTION 271FA SECTION 271FAB SECTION 271FB SECTION 271G SECTION 271 GA SECTION 271 GB SECTION 271H SECTION 271 I CLAUSE (C) OR CLAUSE (D) OF SUBSECTION (1) O R SUBSECTION (2) OF SECTION 272A SUBSECTION (1) 272AA OR SECTION 27 2B OR SUBSECTION (1) OR SUBSECTION (1A) OF SECTION 272 BB OR SUBSECTION (1) OF SECTION 272 BBB OR CLAUSE (B) OF SUBSECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUBSECTION (2) OF SE CTION 273 NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASS ESSEE AS THE CASE MAY BE FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REASONABLE C AUSE FOR THE SAID FAILURE. 6. ADMITTEDLY THE ASSESSEE HAS FAILED TO COMPLY WI TH THE PROVISIONS OF SECTION 272A(2)(K) OF THE ACT. AS PER THE PROVISION S OF SECTION 273B OF THE ACT UNLESS THE ASSESSEE IS IN A POSITION TO PROVE THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE WITHIN THE M EANING OF THE SAID SECTION HE IS LIABLE FOR PENALTY PRESCRIBED UNDER LAW. WE NOTICE THAT THE 4 ITA NO 5252/MUM/2014 ASSESSMENT YEAR: 2010-11 PLEA OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW W AS THAT DUE TO CHANGE OF ACCOUNTANT THE ASSESSEE WAS NOT AWARE WHETHER THE R ETURN WAS FILED OR NOT AND THE ASSESSEE FILED THE STATEMENT WHEN HE CAME T O KNOW THAT THE SAME HAS NOT BEEN FILED. BEFORE US THE LD. AR REITERATED THE SAME PLEA. IN HINDUSTAN STEEL LTD. VS. STATE OF ORISSA (SUPRA) THE HON BLE SUPREME COURT HAS OBSERVED AS UNDER:- 5... AN ORDER IMPOSING PENALTY FOR FAILURE TO CA RRY OUT A STATUTORY OBLIGATION IS THE RESULT OF QUASI CRIMINA L PROCEEDING AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS T HE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF L AW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST OR ACT ED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETH ER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTOR Y OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EX ERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVA NT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRI BED THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE J USTIFIED IN REFUSING TO IMPOSE PENALTY WHEN THERE IS A TECHNIC AL OR VENIAL BREACH OF PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE.. 7. THE FACTS AND CIRCUMSTANCE OF THE CASE DO NOT S UGGEST THAT THE FAILURE ON THE PART OF THE ASSESSEE IN FILING RETURN WITHIN THE PRESCRIBED PERIOD WAS EITHER DELIBERATE OR DISHONEST. THEREFORE IN V IEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT WE HOLD IN THE LIGHT OF THE PLEA TAKEN BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND BEFOR E US THAT THERE WAS REASONABLE CAUSE FOR ASSESSEES FAILURE TO DISCHARG E THE STATUTORY OBLIGATION WITHIN THE MEANING OF SECTION 273B OF TH E ACT. HENCE WE FIND SUBSTANCE IN THE CONTENTION OF THE ASSESSEE. ACCORD INGLY WE SET ASIDE THE 5 ITA NO 5252/MUM/2014 ASSESSMENT YEAR: 2010-11 ORDER PASSED BY THE LD. CIT(A) AND ALLOW THE GROUND S OF APPEAL OF THE ASSESSEE. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2016 SD/- SD/ - ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 28/09/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' $ !'% / DR ITAT MUMBAI 6. &' ( / GUARD FILE. / BY ORDER ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI PRAMILA