Fortune Gitls Pvt.Ltd.,, Ahmedabad v. The Addl.CIT.,TDS Range,, Ahmedabad

ITA 851/AHD/2010 | 2008-2009
Pronouncement Date: 09-07-2010 | Result: Allowed

Appeal Details

RSA Number 85120514 RSA 2010
Bench Ahmedabad
Appeal Number ITA 851/AHD/2010
Duration Of Justice 3 month(s) 17 day(s)
Appellant Fortune Gitls Pvt.Ltd.,, Ahmedabad
Respondent The Addl.CIT.,TDS Range,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 09-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-07-2010
Date Of Final Hearing 02-07-2010
Next Hearing Date 02-07-2010
Assessment Year 2008-2009
Appeal Filed On 22-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MUKUL SHRAWAT JUDICIAL MEMBER) ITA.NO.851/AHD/2010 ASSTT.YEAR : 2008-2009 FORTUNE GILTS PVT. LTD. 1/2 MEGHALAY FLATS NR.SARDAR PATEL COLONY NARANPURA AHMEDABAD. VS. ITO WARD-1(2) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NIMESH VAYAWALA REVENUE BY : SHRI SAMIR TEKRIWAL O R D E R PER G.D. AGARWAL VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE CIT(A)-VI SURAT DATED 18. 11.2009 FOR A.Y.2008-2009 ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER P ASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961. 2. THE ONLY GROUND IN THIS APPEAL BY THE ASSESSEE R EADS AS UNDER: GROUND 1. THE LD.CIT(A) HAS ERRED IN HOLDING THAT THERE W AS NO REASONABLE CAUSE FOR LATE PAYMENT OF TDS U/S.194A HE OUGHT NOT HAVE CONFIRM THAT PENALTY U/S.271C. THUS PENALTY MAY BE DELETED. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT THE ASSESSEE DEDUCTED TDS FROM J. M. PRODUCTS FIN. LTD. AMOUNTING TO RS.1 12 955/-. HOWEVER THERE WAS DEL AY IN THE DEPOSIT OF THE ABOVE TDS AMOUNT BY 16 DAYS. THE TDS WAS TO BE DEP OSITED BY 7-1-2008 BUT THE ASSESSEE DEPOSITED THE SAME ON 23-1-2008. IT I S SUBMITTED BY THE LEARNED COUNSEL THAT NOMINAL DELAY OF 16 DAYS WAS DUE TO AC COUNTANT OF THE ASSESSEE. HE ALSO SUBMITTED THAT THE TDS WAS DEPOSITED WITH I NTEREST. IT WAS POINTED OUT BY THE LEARNED DR THAT THERE WAS SURVEY AT THE ASSE SSEES PREMISES ON 22-2- ITA.NO.851/AHD/2010 -2- 2008 AND TDS WAS DEPOSITED BY THE ASSESSEE ON 23-1- 2008. THUS HAD THERE BEEN NO SURVEY THE ASSESSEE WOULD NOT HAVE DEPOSIT ED THE TDS AND THEREFORE PENALTY WAS RIGHTLY LEVIED BY THE AO. IT WAS POINT ED OUT BY THE LEARNED COUNSEL THAT THE ASSESSEE HAD ALWAYS DEPOSITED TDS IN TIME. EVEN DURING THE YEAR UNDER CONSIDERATION THE TDS OF OTHER PARTIES WAS D EPOSITED IN TIME BUT MERELY BECAUSE THERE WAS A NOMINAL DELAY OF 16 DAYS IN DEP OSIT OF TDS IT CANNOT BE PRESUMED THAT HAD THERE BEEN NO SURVEY THE ASSESSE E WOULD NOT HAVE DEPOSITED THE TDS. HE THEREFORE SUBMITTED THAT THE PENALTY L EVIED UNDER SECTION 271C MAY BE CANCELED. 4. CONSIDERING ALL THE FACTS AND THE ARGUMENTS OF T HE BOTH THE SIDES IN OUR OPINION IT IS NOT A FIT CASE FOR LEVY OF PENALTY U NDER SECTION 271C. MERELY BECAUSE SURVEY HAD TAKEN PLACE ON 22-2-2008 IT CAN NOT BE PRESUMED THAT THE TDS DEPOSITED BY THE ASSESSEE WAS ONLY ON ACCOUNT O F SURVEY. IT IS NOT DISPUTED THAT TAX DEDUCTED FROM OTHER PARTIES WAS D EPOSITED BY THE ASSESSEE IN TIME IN THIS YEAR AS WELL AS IN THE PRECEDING YEAR S. MERELY BECAUSE THE ACCOUNTANT OMITTED TO DEPOSIT THE TDS FOR A PERIOD OF 16 DAYS WHICH IS ALSO DEPOSITED BY THE ASSESSEE WITH INTEREST IT CANNOT BE SAID THAT THE ASSESSEE FAILED TO DEPOSIT THE TAX DEDUCTED AT SOURCE SO AS TO MAKE HIM LIABLE FOR PENALTY UNDER SECTION 271C. IN VIEW OF THE ABOVE WE ARE OF THE OPINION THAT THE LEVY OF PENALTY UNDER SECTION 271C IS NOT JUSTIFIED. THE S AME IS CANCELLED. 5. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 9 TH JULY 2010. SD/- SD/- (MUKUL SHRAWAT) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 09-07-2010 ITA.NO.851/AHD/2010 -3- VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER AR ITAT AHMEDABAD