Case Law Details
ITO (TDS) Vs Hadpawat Enterprises (P) Ltd. (ITAT Jodhpur)
From a plain reading of second proviso to Section 272A(2) which is inserted by the Finance Act, 2012 w.e.f. 01-07-2012, it is clear that penalty under clause (k) of Section 272(A)(2) cannot be levied on or after the 1st Day of July, 2012. In the instant case, the penalty order is dated 04-03-2013 and therefore, is in violation of the provisions of the Act The order is passed beyond the period stipulated by the Act and is time-bared therefore liable to be quashed on this ground alone Thus, without going into the other arguments of the appellant, the penalty order is quashed and the penalty imposed at 40,600/- is deleted.
FULL TEXT OF THE ORDER OF ITAT JODHPUR
This is an appeal filed by the Revenue against the order of the ld. CIT(A)-1, Udaipur dated 07-08-2019 for the assessment year 2011-12 raising therein following grounds of appeal:-
‘’1. Whether in the facts and circumstances of the case and in law the ld CIT(A) has erred in deleting the penalty levied u/s 272(A)(2)(k) of the Income Tax Act, 1961 levied by the Jt.CIT(TDS)/AO, Udaipur for failure to file of TDS statement (s) within the time specified in sub-section (3) of Section 200 of I.T. Act, 1961 for F.Y. 2010-11 (A.Y. 2011-12) (Quarter-2nd) in contrary to proviso to proviso to sub-clause (k) of Section 272(A)(2) inserted by the Finance Act 2012 w.e.f. 01-07-2012 holding that the order u/s 272A(2)(k) of the I.T. Act issued by the AO/Jt.CIT(TDS) on 8-04-2013 is barred by limitation.
Whether under the facts and circumstances of the case and law the ld CIT(A) erred I not considering the fact that the failure relates to a statement required to be filed / delivered or cause to be delivered for the tax deducted at source for the period prior to Ist day of July, 2012.
2.1 When the case is called for, none has appeared on behalf of the assessee. We, therefore, decide to adjudicate the appeal with the assistance of ld. DR
2.2 Apropos ground No. 1 and 2 of the Revenue, the facts as emerges from the order of the ld. CIT(A) are as under-
‘’6 .I have heard considered the penalty order and appellant submissions. The AO imposed the penalty holding that there was no reasonable cause for late filing of TDS quarterly statement. The appellant has argued that there was a reasonable cause for delayed filing of TDS statement as tax was deposited in time but due to unavoidable reasons, TDS statement could not be submitted in time, therefore, penalty u/s 272A(2)(k) should not be imposed. The relevant provisions of section 272A(2)(k) of the Act are reproduced as below for the sake of clarity.
[Penalty for failure to answer questions, sign statements, furnish information, returns or statements, allow inspection etc.0
272A. (1) if any person,-
……..
(2) if any person fails-
(a) ….
(b) ….
(c) ….
(d) ….
(e) ….
(f) ….
(g) ….
(h) ….
(i) ….
(j)` ..
(k) to deliver or cause to be delivered a copy of the statement within the time specified in sub-section (4) of Section 200 or the proviso to Sub0section (3) of Section206©
(l)..
(m)…
he shall pay, by way of penalty a sum (of one hundred rupee) for every day during which the failure continues.
[Provided that the amount of penalty….. as the case may be]
[1ist day of July 2012]
From a plain reading of second proviso to Section 272A (2) which is inserted by the Finance Act, 2012 w.e.f. 01-07-2012, it is clear that penalty under clause (k) of Section 272(A)(2) cannot be levied on after the 1st Day of July, 2012. In the instant case, the penalty order is dated 04-03-2013 and therefore, is in violation of the provisions of the Act The order is passed beyond the period stipulated by the Act and is time-bared therefore liable to be quashed on this ground alone Thus, without going into the other arguments of the appellant, the penalty order is quashed and the penalty imposed at 40,600/- is deleted. The Ground No. 1 raised by the appellant regarding this issue is allowed.”
2.3 We have heard the ld DR who has relied upon the order of the It is noticed that ld. DR except relying upon the order of the AO has not advanced any arguments to controvert the findings of the ld. CIT(A). In this way, we find that the ld. CIT(A) has passed the reasoned order deleting the penalty by considering that since amendment has been brought in by Finance Act, 2012 inserting Second Proviso to Section 272A(2) of the Act providing w.e.f. 01-07-2012, penalty is not leviable u/s 272A(2)(k) of the Act. Thus AO’s order dated 5-03-2013 is not maintainable. Thus the grounds raised by the Revenue are dismissed.
3.0 In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open Court on 24 /03/2023.
