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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEYAND SHRI S. RIFAUR RAHMAN
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBERAND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER
ITA no.2919/Mum./2016 (Assessment Year : 2010–11) ITA no.2920/Mum./2016 (Assessment Year : 2010–11) Shri Raviraj Relampaddu A–204, A–Wing, 2nd Floor Nikita Horizon, Plot no.5 ……………. Appellant Sector–6, Ghansoli Navi Mumbai 400 701 PAN – AFDPR4214B v/s Asstt. Commissioner of Income Tax ……………. Respondent TDS Range, Thane Assessee by : Ms. Radha Halbe Revenue by : Smt. Jyothilakshmi Nayak
Date of Hearing – 02.03.2020 Date of Order – 13.03.2020
O R D E R PER SAKTIJIT DEY. J.M.
The captioned appeals by the same assessee are against two separate orders, both dated 23rd February 2016, passed by the learned Commissioner of Income Tax (Appeals)–1, Thane, confirming penalty imposed under section 272A(2)(k) and under section 271C of the Income Tax Act, 1961 (for short "the Act").
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ITA no.2919/Mum./2016
The issue arising in this appeal relates to imposition of penalty
under section 272A(2)(k) of the Act.
Brief facts are, while processing the TDS statement filed in Form
no.26Q for different quarters of financial year 2009–10, the Assessing
Officer found that all such statements have been filed belatedly. Thus,
the Assessing Officer issued a show cause notice requiring the
assessee to explain why penalty should not be imposed under section
272A(2)(k) of the Act for delayed filing of TDS statement. As alleged
by the Assessing Officer, the assessee did not comply to the notice
issued. Proceeding further, the Assessing Officer observed that there
are substantial delay of 394 to 729 days in filing TDS statement, which
makes the assessee amenable to imposition of penalty 272A(2)(k) of
the Act. Accordingly, he proceeded to impose penalty of various
amounts depending upon the quantum of delay in different quarters as
under:–
Max. Tax Amt. S. Form Date of Penalty Qrtr. F.Y. RPR no. Due Date Delay deducted no. no. Filing leviable (in `) (in `) 1. 26Q Q1 2009–10 30170200345106 15.07.09 14.07.11 729 61,562 61,562 2. 26Q Q2 2009–10 30170200345110 15.10.09 14.07.11 637 46,861 46,861 3. 26Q Q3 2009–10 30170200345121 15.01.10 14.07.11 545 36,449 36,449 4. 26Q Q4 2009–10 30170200345132 15.06.10 14.07.11 394 73,919 39,400 TOTAL:– 1,84,272
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However, in the present appeal, we are concerned with the penalty of ` 39,400, imposed for the fourth quarter. Be that as it may, challenging the imposition of penalty under section 272A(2)(k) of the Act, the assessee filed appeals before the first appellate authority.
Learned Commissioner (Appeals), however, confirmed the penalty imposed by the Assessing Officer.
The learned Authorised Representative submitted, while deciding assessee’s appeal filed in respect of penalty imposed for quarters no.1 to 7, where the Tribunal has deleted penalty imposed by holding that there is no malafide intention of the assessee to filed the TDS statement belatedly. Thus, he submitted, the issue has to be decided in favour of the assessee.
The learned Departmental Representative relied upon the observations of the Assessing Officer and learned Commissioner (Appeals).
We have considered rival submissions and perused the material on record. As could be seen from the facts discussed above, the Assessing Officer had imposed penalty under section 272A(2)(k) of the Act for different quarters of the financial year 2009–10 due to delay in filing of TDS statements. However, while deciding assessee’s appeals
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for the first three quarters of the financial year 2009–10, the Tribunal vide ITA no. 2916–2918/Mum./2016, dated 11th May 2018, has deleted the penalty imposed under section 272A(2)(k) of the Act. Facts being identical, respectfully following the aforesaid decision of the Co–ordinate Bench, we delete the penalty imposed under section 39,400. Ground raised by the assessee is allowed.
In the result, appeal is allowed.
ITA no.2920/Mum./2016
The only issue arising in the present appeal relates to imposition of penalty under section 271C of the Act due to failure on the part of the assessee to deduct tax at source.
Brief facts are, from the report generated by the ITD system for the financial year 2009–10, the Assessing Officer noticed that the assessee has defaulted in depositing TDS of ` 1,31,533, for a period of more than 365 days. Accordingly, show cause notices were issued to the assessee for initiation of prosecution proceeding under section 276B of the Act. In response, it was submitted by the assessee that while finalizing their account and auditing them came to know that TDS has not been deducted from the parties, however, noticing this lapse, the assessee paid the TDS amount from pocket along with interest. Thus, it was submitted that there is no malafide intention for
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not deducting tax at source. Subsequently, the Assessing Officer issued a show cause notice under section 271C of the Act for imposition of penalty due to non–deduction of tax at source. Though, the assessee explained that due to bonafide belief, tax was not deducted. However, the Assessing Officer rejecting the explanation of the assessee imposed penalty of ` 1,31,533, under section 271C. 12. The learned Commissioner (Appeals) confirmed the penalty imposed by the Assessing Officer.
The learned Authorised Representative submitted, without declaring the assessee as an assessee in default under section 201(1) of the Act, the Assessing Officer cannot impose penalty under section 271C of the Act. In support of such contention, learned Authorised Representative relied upon the following decisions:–
i) ACIT v/s Sri Chaitnya Educational Trust, ITA no.1156–1163/ Hyd./2016, dated 30.05.2018; and ii) CIT v/s H.P. State Electricity Board (H.P. HC).
We have considered rival submissions and perused the material on record. The fact that the Assessing Officer has not passed any order under section 201(1) of the Act treating the assessee as an assessee in default has not been disputed by the Revenue. In the decisions relied upon by the learned Authorised Representative, it has been categorically held that without declaring the assessee as assessee in
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default under section 201(1) of the Act, no penalty under section 271C of the Act can be imposed. Respectfully following the ratio laid down in the decisions cited supra, we delete the penalty imposed under section 271C of the Act. Ground raised by the assessee is allowed.
In the result, appeal is allowed. Order pronounced in the open Court on 13.03.2020
Sd/- Sd/- S. RIFAUR RAHMAN SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 13.03.2020 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary
Assistant Registrar ITAT, Mumbai