MAHARAHSTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT,MUMBAI vs. ADDL CIT (TDS) 2, MUMBAI

This appeal by assessee is directed against the order of ld. Commissioner of Income-Tax (Appeals)-14, [ld. CIT(Appeals)], Mumbai dated 26.05.2014 for Assessment Year 2008-09 which in turn arises from the penalty levied by assessing officer under section 272A(2)(k) of the I.T.

Brief facts of the case are that the Assessing Officer noted that assessee has not filed quarterly returns of Tax Deducted at Source (‘TDS’) as required under section 206/206C of the Act for Financial Year 2007-08. A show-cause notice dated 24.06.2011 was issued to the assessee. The assessee in reply to the show-cause notice vide its reply dated 07.07.2011 Mum 2014 - Ms Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit contended that they failed to furnish the statement of quarter no. 2nd and 4th for Financial Year 2007-08 due to data migration and modification of payroll software. The assessee was asked to furnish the requisite details vide notice dated 07.12.2011. The assessee furnished the copy of TDS statement/return and repeated the same contention that due to data migration and modification of payroll software. The return of 2nd and 4th quarter, there was delay and it may be condoned. The Assessing Officer not accepted the contention of assessee and levied the penalty of Rs.8,99,386/-. On appeal before the ld. CIT(A), the action of Assessing Officer was sustained. Further, aggrieved by the order of ld. CIT(A), the assessee has filed the present appeal before us.

Perusal of the appeal reveals that the appeal is filed beyond 17 days of prescribed period of limitation. In support of condonation of delay, the assessee has filed affidavit of Shri Haren Sankhe, Manager Accounts of Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit. The ld. AR of the assessee submits that the assessee is a Co-operative Organization the delay in filing of the appeal is neither intentional nor deliberate, the delay occurred due to frequent transfer of officer of the assessee. The ld. AR prayed for taking a lenient view. On the other hand the ld DR for the revenue has not strongly objected the ground raised

We have heard the ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the Revenue and perused the material available on record. The ld. AR of the assessee submits that he has filed detailed working of due date of filing TDS return, date of deposit of last challan, actual date of filing of TDS return along with TDS amount and number of delays. The ld. AR of the assessee prayed that the assessee is a Co-operative organization and non-furnishing of TDS return in time was neither intentional nor deliberate. The ld. AR of the assessee further submits that there is no loss to revenue and delay in furnishing the return was merely a technical or due to reasons beyond the control of assessee. In support of his submission, the ld. AR of the assessee relied upon the decision of Chandigarh Tribunal in case of M/s Ashirwad Complex vs JCIT in dated 22.11.2013.

On the other hand, the ld. DR for the Revenue supported the order of authorities below. The ld. DR for the Revenue submits that details of working and the documents attached therewith showing the summarized working of different quarters were not furnished before the Assessing 3 ITA No. 5284 Mum 2014 - Ms Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit Officer or before the ld. CIT(A). The ld. CIT(A) passed the order ex-parte due to non appearance of on behalf of assessee. The ld. DR for the Revenue submits that no plausible explanation was given before Assessing Officer. The working of working of due date of filing TDS return, date of deposit of last challan, actual date of filing of TDS return along with TDS amount and number of delays is filed for the first time before the Tribunal.

We have considered the rival submission of the parties and have gone through the orders of authorities below. We have noted that Assessing Officer passed the order in absence of sufficient explanation and for the reasons not giving the sufficient explanation. We have further noted that ld. CIT(A) passed the order ex-parte as non to appear to explain the fact.

Before the Tribunal, the assessee has filed a details working of due date of filing TDS return, date of deposit of last challan, actual date of filing of TDS return along with TDS amount and number of delays along with summarized working of different quarters, for the first time before the Tribunal. In our considered view, the details of working furnished by 4 ITA No. 5284 Mum 2014 - Ms Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit Assessing Officer required proper verification. Therefore, considering the detailed working regarding various quarters, the matter is restored to the file of Assessing Officer to consider it afresh. The Assessing Officer is further directed to consider the explanation of assessee sympathetically and passed the order in accordance with law. The Assessing Officer is further directed to consider the decision relied by both the parties before passing the order in accordance with law.

In the result, the appeal filed by assessee is allowed for statistical purpose.