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Income Tax Appellate Tribunal - Cochin

M/S.Classic Concepts Home India (P) ... vs Assessee on 9 January, 2015

             IN THE INCOME TAX APPELLATE TRIBUNAL
                    COCHIN BENCH, COCHIN
     BEFORE S/SHRI N.R.S.GANESAN, JM and CHANDRA POOJARI, AM

                     I.T.A. Nos. 469-472/Coch/2014
                Assessment Years : 2009-10 to 2012-13

 M/s. Classic Concepts Home Vs.            The   Addl.   Commissioner     of
 India (P) Ltd.,                           Income-tax (TDS), Kochi.
 VI/565, IDA Edayar,
 Binanipuram P.O.,
 Aluva-683 502.
 [PAN:AACCC 3389F]
    (Assessee-Appellant)                      (Revenue-Respondent)

             Assessee by         Shri T.M. Sreedharan, Sr. Adv.
             Revenue by          Shri K.K. John, Sr. DR

                Date of hearing                22/12/2014
                Date of pronouncement          09/01/2015

                                     ORDER


Per CHANDRA POOJARI, Accountant Member:

All these appeals filed by the assessee are directed against the different orders dated 28-08-2014 passed by the CIT(A)-III, Kochi for the assessment years 2009-10 to 2012-13.

2. The common ground in all these appeals is with regard to levy of penalty u/s. 271C of the I.T. Act.

3. The Ld. AR submitted that the assessee has filed appeals against the orders levying penalty u/s. 271C of the I.T. Act in respect of the Financial Years 2008-09 to 2011-12 aggregating to Rs.27,80,002/- as shown below:

                 A.Y.          Amount
               2008-09      Rs.11,16,260
               2009-10      Rs. 2,16,289
               2010-11      Rs. 9,46,936
               2011-12      Rs. 5,00,517
                            Rs.27,80,002


3.1      The Ld. AR submitted that there was short delay in remittance of

TDS and TDS could not be deposited before the date due to stringency of funds. However, the Assessing officer did not accept the explanation of the assessee and held that tax deducted at source and retained by the assessee was not the money of the assessee. According to the Assessing officer the assessee is required to manage its affairs in such a manner that the statutory obligations are met in time. Since the TDS made was not deposited within the prescribed time, the Assessing officer held that the assessee was liable for levy of penalty u/s. 271C 3.2 Regarding Financial Year 2008-09, the Ld. AR submitted that the assessee has furnished separate statement showing the tax deducted and remitted during each quarter according to which the total amount deducted was Rs.14,19,778/-. The Ld. AR submitted that the assessee also remitted 3 I.T.A. Nos.469-472/Coch/2014 interest for delayed payment amounting to Rs.1,28,670/- with respect to the short delay in each quarter. However, it was submitted that againt the total payment of Rs.14,19,779/-, the Assessing officer levied penalty amounting to Rs.11,16,120/-. The Ld. AR submitted that as per the details of TDS particulars, it would be seen that the TDS was made u/s. 194I, 194C, 194J etc. and analysis of the statement would show that the remittances for the first quarter of the Financial Year 2008-09 were made on 25/05/2009 and 31/07/2009 and the total amount deposited was Rs.3,27,577/-.

3.3 Similarly, the Ld. AR submitted that for the second quarter, the remittances were made on 30/06/2009 and 31/07/2009 and the amount remitted was Rs.3,43,955/- . Likewise for the third quarter, the remittances were made on 1.7.2009 and 317.2009 aggregating to Rs.3,36,225/- and the delay in remittance ranged from 190 days and above. As far as the last quarter was concerned, the Ld. AR submitted that the number of delay ranged from 19 day onwards which was shown separately in the tabulation. 3.4 The Ld. AR submitted that for each of these quarters for the delay in remittance, interest under section 201(1A) was charged and such interest was also remitted before initiation of penalty proceedings u/s. 271C of the I.T. Act.

3.5 According to the Ld. AR, the action under section 271C was belated by almost four years. The order imposing penalty was passed on 15/11/2013 with respect to all the four Financial Years. The Ld. AR submitted that the delay in remitting the TDS was due to severe financial difficulties. For this, she relied on the judgment of the Kerala High Court in the case of CIT vs. Chembara Peak Estates Ltd. (1989) 183 ITR 471 (Ker.) wherein it was held that non payment of tax in time for want of sufficient liquid funds amounted to reasonable cause. She also relied on the decision of the Delhi High court in the case of Woodward Governors India (P) Ltd. vs. CIT and others (2002) ( 253 ITR 745) wherein it was held that mere delay in remitting the tax deducted at source would not result in levy of penalty under section 271C. Where there is reasonable cause for delay in remitting tax deducted at source, penalty under section 271C cannot be levied and it was held that levy of penalty under section 271C was not automatic but only discretionary. In the present case, the Ld. AR submitted that the entire amount has been remitted within short delay. 3.6 The Ld. AR further relied on the judgment of the Supreme Court in the case of M/s. Hindustan Steel Ltd. vs. State of Orissa (1972) 83 ITR 26 (SC) wherein it was held that unless the assessee acted fraudulently or dishonestly and in willful defiance of the law, the penalty is not leviable. It 5 I.T.A. Nos.469-472/Coch/2014 was also submitted that the statutory authority has failed to advert to section 273B of the Act under which levy of penalty is forbidden any when there is reasonable cause for the delay. The Ld. AR submitted that genuine financial difficulty is a reasonable cause for the delay in remittance of the TDS amount as was held by Jurisdictional High Court in the case of CIT vs. Chembara Peak Estates Ltd. (1989) (193 ITR 471).

3.7 The Ld. AR also submitted that the assumption made by the Assessing Officer in the order levying penalty that the tax deducted at source and retained by the assessee was not the money of the assessee was not correct and it is not as if the assessee retained the TDS amount without remitting the same to the Government Treasurary. According to the Ld. AR, the payments were first made to the customers as and when funds came in, as otherwise the business itself would come to a standstill without payment to the customers. However, according to the Ld. AR, sufficient care was taken to see that the delay was unavoidable. According to the Ld. AR, there was reasonable cause for the delay because even before the issuance of notice under section 274 r.w.s. 271C, the entire TDS was remitted. Thus, the Ld. AR submitted that the penalty levied was illegal and without justification and prayed that the recovery of the demand may be stayed pending disposal of the appeal.

4. On the other hand, the Ld. DR submitted that this is not a case where penalty is to be levied merely because for the sake of it. The fact that interest under section 201(1A) of the I.T. Act is levied, does not mitigate the gravity of the default of belated deposit of tax, or otherwise absolve the assessee from the penalty. The Ld. DR relied on the judgment of Karnataka High Court in the case of CIT vs. United Insurance Co. Ltd. (321 ITR 231) wherein it was held that levy of interest under section 201(1A) is not in the nature of penalty. He further relied on the judgment of the Supreme Court in the case of CIT vs. Atul Mohan Bindal (317 ITR 1) and Union of India vs. Dharmendra Textile Processors (306 ITR 277) wherein it was held that penalty is a civil liability and the offence need not have been willful for attracting civil liability as is the case in the matter of prosecution. According to the Ld. DR, the pre-condition imposed in section 273B of the Income Tax Act, 1961, on the authorities competent to levy penalty, not to do so, if the assessee proves that there was reasonable cause for the said failure on account of which the penalty is proposed to be levied, is not applicable in the instant case, since the assessee deductor is constantly delaying deposit of tax deducted at source to the Central Government Account, without any satisfactory explanation for the same. 4.1 According to the Ld. DR, it has been noticed in a large number of cases that the deductors have been retaining TDS amount even for more 7 I.T.A. Nos.469-472/Coch/2014 than a year and has been utilizing such amount for business purposes and that once a cycle is maintained, the deductor can get away with retaining the amount on a regular basis year after year. Further, the Department is receiving grievance petitions from deductees regarding non-credit of TDS, due to non deposit/delay in deposit of tax deducted and/or non-filing of quarterly statements under the provisions of the Income Tax Act and Rules.

4.2 According to the Ld. DR, the assessee has retained the tax deducted at source during the year and utilized the same for their business purposes. The assessee is not authorized to retain tax deducted at source by them which they were required to remit within the due date stipulated for depositing the same to the Central Government Account. The assessee has belatedly deposited the tax deducted at source by them from the deductees. The Ld. DR relied on the judgment of the Supreme Court in the case of Madhumilan Syntex Ltd. vs. Union of India (290 ITR 199) wherein it was held that once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. If the payment is not made within that period, there is default and an appropriate action can be taken under the Act. The fact that by belatedly depositing not depositing the tax deducted at source by them, the assesee has been unjustly depriving the deductees from 8 I.T.A. Nos.469-472/Coch/2014 getting credit for the tax deducted at source from them also has to be taken into account. Being so, the Ld. DR submitted that in the absence of good and sufficient reasons,, the lower authorities were justified in levying the penalty under section 271C of the Act.

5. We have heard both the parties and perused the record. In the present case, the assessee has failed to remit the deducted tax to the Government account. Section 271C was introduced by the Direct Laws (Amendment) Act, 1987 with effect from 1.4.1989 providing for penalty for failure to deduct or remit tax under Chapter XVIIB, sub-section (2) of section 115(O) and section 194B of the Act. The relevant portion of section 271C is extracted below:

"Penalty for failure to deduct tax at source u/s. 271C (1) If any person fails to:

(a) deduct the whole or any part of the tax as required by or under the provisions of Chapter XVIIB; or

(b) pay the whole or any part of the tax as required by or under:

(i) sub-section (2) of section 115O; or

(ii) the second proviso to section 194B, then, such person shall be liable to pay, by way of penalty, a sum equal to the amount of tax which such person failed to deduct or pay as aforesaid.

(2) Any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner."

6. There is default in complying with the requirement u/s. 271C of the Act with reference to payment of tax deducted to the Government as follows:

             A.Y.             Amount
             2008-09       Rs.11,16,260
             2009-10       Rs. 2,16,289
             2010-11       Rs. 9,46,936
             2011-12       Rs. 5,00,517
                           Rs.27,80,002

7. The contention of the Ld. AR is that sec. 271C provides for penalty only for failure to deduct tax as required under Chapter XVIIB and for nonpayment of tax, penalty provided is only for violation of sub- section (2) of section 115(O)or sec. 194B of the Act. In other words, according to the Ld. AR, if the assessee has made deduction from source on payments like salary, payment to contractors, payment on rent etc. under various provisions of Chapter XVIIB, then no penalty can be levied if the assessee failed to remit the tax attracts penalty under section 271C only in respect of tax payable under sub section (2) of section 115(O) or section 194B of the Act.. Further, the Ld. AR submitted that the assessee has already paid the tax before deduction by the Assessing Officer, being so, there is no question of levy of penalty in the case of the assessee. .

8. In our opinion, the same issue was considered by the High Court of Kerala in the case of US Technologies International (P) Ltd. vs. CIT (195 taxman 323) (Ker.) wherein it was held that if there is failure to remit or deduct the tax in whole or any part thereof, will attract provisions of penalty under section 271C of the I.T. Act. Being so, the assessee cannot re-argue the same issue before us. The facts in this case being identical to that one considered by the High Court of Kerala in the case of US Technologies International (P) Ltd., cited supra, we are inclined to hold that the assessee is liable for penalty not only in terms of provisions of Chapter XVIIB but also for non payment of tax deducted at source in time.

9. The Ld. AR made a plea before us that because of financial problem, the assessee failed to remit or deduct tax to the Government. However, there is no iota of evidence to suggest that the assessee is suffering from financial difficulty. Hence, the assessee's argument thus cannot be constituted as explanation to say that the assessee is suffering from financial difficulty unless the assessee substantiates it with evidence. Even if there is financial difficulty, it is the duty of the assessee to substantiate the financial hardship by placing necessary evidence. In the present case, there is no material to suggest the financial difficulty of the assessee.

10. The other grievance of the assessee is that when the assessee has remitted the deducted amount with interest before the detection by the Department, hence penalty cannot be levied. This contention of the assessee cannot be considered as reasonable cause and there is delay of remittance of deposited amount to the Government and payment of interest is compensatory in nature and in this case, there was a continuous delay of 4 years and the belated depositing of deducted amount every year and the assessee is a willful defaulter. Being so, we are inclined to confirm the order of the CIT(A) on this issue.

11. The Ld. AR made a plea before us that in one assessment year, 2010-11, penalty levied was more than the tax which the assessee failed to deduct . Being so, the Assessing Officer shall recompute the penalty amount and it shall not exceed the amount of tax which the assessee failed to deduct and pay the same to Central Government. With this observation, we are inclined to confirm the order of the penalty.

12. In the result, all the appeals filed by the assessee are dismissed.

                      Pronounced in the open court on 09-01-2015



       sd/-                                         sd/-
(N.R.S.GANESAN)                                (CHANDRA POOJARI)
JUDICIAL MEMBER                               ACCOUNTANT MEMBER
Place: Kochi
Dated: 9th Jan 2015
GJ
                                      12           I.T.A. Nos.469-472/Coch/2014


Copy to:

1. M/s. Classic Concepts Home India (P) Ltd., VI/565, IDA Edayar, Binanipuram P.O., Aluva-683 502.

2. The Additional Commissioner of Income-tax (TDS), Kochi.

3. The Commissioner of Income-tax(Appeals)-III, Kochi.

4. The Commissioner of Income-tax, Kochi.

5. D.R., I.T.A.T., Cochin Bench, Cochin.

6. Guard File.

By Order (ASSISTANT REGISTRAR) I.T.A.T., Cochin