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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
Assessee by : Dr. Prayag Jha, Advocate-Ld.AR Revenue by : Chaudhury Arun Kumar Singh-Ld.DR सुनवाईक"तार"ख/ : 04/07/2019 Date of Hearing घोषणाक"तार"ख / : 15/07/2019 Date of Pronouncement आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member): - 1.
As per Section 272A(2)(K) of the Income Tax Act, 1961 (in short ‘Act’), if any person fails to deliver or cause to be delivered a copy of the statement within the time specified in sub-section (3) of section 200 or the 2 Sai Satyam Hospitals Private Limited Assessment Year-2011-12 proviso to subsection (3) of section 206C, then he shall pay, by way of penalty, a sum of Rs.100/- for every day during which the failure continues. Section 273B exonerate assessee from imposition of penalty u/s 272(A)(2) if the assessee proves that there was reasonable cause for the said failure.
2. Invoking the provisions of Section 272A(2)(K) against the assessee who happens to be a resident corporate assessee stated to be engaged in medical field, Ld. Additional Commissioner of Income Tax, TDS Range, Thane imposed a penalty of Rs.38,900/- vide order dated 08/03/2013, on account of delay of 389 days in filing TDS return in Form No. 26Q for Quarter-1 of financial year 2010-11. While doing so, the assessee was issued & served with requisite show-cause notice u/s 272A(2)(k)/ 274 r.w.s 200(3) dated 12/09/2012. However, the same remained un-responded and the assessee failed to defend the same. Accordingly, impugned penalty of Rs.38,900/- was levied against the assessee u/s 272A(2)(k).
3. Before Ld. CIT(A), the assessee, in the statement of facts, pleaded that there was delay in uploading the returns as the directors of the assessee company were doctors and the uploading was due to mere oversight. However, there was no evasion of tax or loss to the government since the assessee deducted as well as paid the taxes to the government exchequer. However, the assessee failed to make any appearance before Ld. first appellate authority on various dates of hearing and accordingly, Ld. CIT(A) proceeded ex-parte to confirm the stand of lower authority. Aggrieved, the assessee is in further appeal before us with following grounds of appeal: - 3 Sai Satyam Hospitals Private Limited Assessment Year-2011-12 On the facts and in circumstances in the case and in law-
1. 1. The Learned CIT(A) erred in dismissing the assessee's appeal on the ground that there was no compliance on 15.03.2018, though the assessee had filed a letter on 15.03.2018 at 11 AM seeking adjournment and the hearing was adjourned to 27.03.2018 but the Learned CIT(A) passed his order on 15.03.2018 itself.
2. Without prejudice to Ground No. 1, the Learned CIT(A) has erred in not considering the fact that the assessee company had deducted tax and had deposited the same in the Government Treasury and delay was only in uploading the TDS Return and there was no loss to revenue.
3. The Learned CIT(A) has erred in not appreciating the fact that assessee company had reasonable cause for not uploading the TDS return within time and also the fact that period of delay specified in the show cause notice was not correct.
4. The above grounds of appeal are without prejudice to one another.”
The Ld. Authorised representative for assessee, making out a case of reasonable cause, inter-alia, pleaded that there was delay in filing the TDS statement due to non-availability of PAN of the deductees, without mentioning of which, the return could not be uploaded. The other submissions are on the same line as made in statement of facts before Ld. first appellate authority.
Upon due consideration, we find that admittedly the directors of the assessee company were doctors who may not be well-versed with technicalities of TDS provisions. The perusal of TDS statement filed by the assessee establish that there were 30 deductee records and PAN was quoted in all the records. This would give some strength to the submissions that the statement was filed only after obtaining PAN of all the deductees. Undisputedly, due TDS has been deducted as well as deposited by the assessee in the government treasury.