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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश आदेश / ORDER आदेश आदेश
PER D. KARUNAKARA RAO, AM :
This appeal is filed by the Assessee against the order of CIT(A)-10, Pune, dated 21-01-2016 for the Assessment Year 2011-12.
Assessee raised the following grounds in the appeal:
“On the facts & circumstances of the case and in law : 1. The Ld.CIT(A) erred in confirming the levy of penalty u/s. 272A(2)(k) of the Income Tax Act, 1961 of Rs.44,900/- by holding that said penalty could not be deleted since the benefit of reasonable cause as enumerated in section 273B did not cover the penalty levied u/s.272A(2)(k). 2. The Ld.CIT(A) failed to appreciate that the penalty levied u/s.272A(2)(k) was also covered in section 273B and since the assessee has a reasonable cause for the delay in filing the TDS quarterly statement, no penalty could be levied u/s.272A(2)(k) and hence, the penalty levied should be deleted.
The appellant craves leave to add, alter and/or withdraw any ground of appeal at the time of appeal hearing.”
the ordinary effect of section 273B does not apply as the said penalty has not found place in section 273B of the I.T. Act and only penalty impossible u/s.272A(2)(c) and (d) have found place and accordingly, the appellant cannot get benefit of section 273B, even if, there are reasonable grounds to explain the reason behind inordinate delay in filing the quarterly TDS statement as envisaged u/s.200(3) of the I.T. Act,”
Briefly stated relevant facts of the case are that the assessee M/s.
The Poona Stud Farm Pvt. Ltd. is an amalgamated company and filed
its return of TDS u/s.200(3) in Form No.26Q for the 2nd quarter of F.Y.
2010-11 on 07-01-2012 as against the statutory due date of
15-10-2010. Thus, there was delay of 449 days. AO vide his order
dated 18-12-2012 invoked the provisions of section 272A(2)(k) and
levied penalty of Rs.44,900/- @ Rs.100/- for each day of delay and
treated the assessee as assessee in default.
Being aggrieved by the order of AO, assessee filed an appeal
before the CIT(A). The CIT(A) after considering the submissions made by
the assessee and discussing the provisions of section 273B confirmed
the penalty levied by the AO.
Aggrieved with such order of the CIT(A), the assessee is in appeal
before the Tribunal with the grounds extracted above.
At the outset, before us, Ld. Counsel for the assessee brought our
attention to the grounds and submitted that this is the case of levy of
penalty u/s.272A(2)(k) of the Act amounting to Rs.44,900/- for delay of
449 days in filing the TDS statements electronically relating to 2nd
Quarter. He submitted that this is the first year of introduction of a
new procedure of e-filing of TDS quarterly statements. Further, there
was an event of amalgamation during the year and the assessee was an
amalgamated company. These unusual events contributed to the delay
in filing the TDS statements. Further, Ld. Counsel for the assessee
submitted that this is a covered issue in favour of the assessee by virtue
of decision of the Pune Bench of the Tribunal in the case of Ajay
Narayanrao Sayalkar Vs. JCIT in ITA No.715/PUN/2016, dated 25-01-
2018 for the A.Y. 2011-12. He read out the contents of Para No.8 of the
order of the Tribunal and submitted that, the reasons for delay since
common, the said decision of the Tribunal apply to the facts of the
present case. Ld. Counsel also filed the copy of order of Ahmedabad
Bench of the Tribunal in the case of ACIT Vs. Lok Prakashan Limited –
ITA No. 2815/Ahd/2009, dated 08-01-2010 for the A.Y. 2007-08.
Assessee also filed the order of Hon’ble Bombay High Court approving
the amalgamation of the company apart from challans representing the
TDS payments.
Ld. DR for the Revenue heavily relied on the orders of the AO and
the CIT(A).
We heard both the sides and perused the orders of the Revenue
as well as the decisions relied on by the Ld. Counsel for the assessee on
the issue under consideration. On perusing the facts of the case, we
find this is a case where the assessee remitted the TDS in time and
however, there was a delay of 449 days in filing e-TDS statements for
2nd Quarter. There is no dispute on the fact that the assessment year
under consideration is A.Y. 2011-12. On similar facts, we find the
Tribunal, in the case of Ajay Narayanrao Sayalkar Vs. JCIT (supra)
granted relief to the assessee as per the discussion given in Para No.8 of
the order. While allowing the appeal of the assessee, the Tribunal
followed the consolidated order of the Tribunal in the case of Nav
Maharashtra Vidyalaya Vs. Addl.CIT (TDS), Range, Pune and others in
ITA No.832/PN/2016 & others, dated 07-10-2016 for the A.Y. 2011-12.
Therefore, we find it relevant to extract the operational para of the
Tribunal in the case of Ajay Narayanrao Sayalkar Vs. JCIT (supra) here
as under :
“8. The case of the assessee before us is that the delay in submission of e-TDS return was because of the problem of awareness of Return Preparation Utility, which was updated by NSDL in the first year, i.e. assessment year 2011-12. Because of the requirement of e-TDS furnishing of TDS statement arising for the first time in assessment year 2011-12, there were problems faced by the assessee and hence, the delay in filing quarterly TDS return late. We hold that the assessee had reasonable cause in not furnishing the same in time and in view of the provisions of section 273B of the Act, we hold that the assessee is not liable to levy of penalty under section 272A(2)(k) of the Act. Hence, the Assessing Officer is directed to delete the same.”
Since the facts of the present case are similar to the one
adjudicated by the Tribunal, we hold that assessee is not liable to
penalty u/s.272A(2)(k) of the Act. Accordingly, the grounds raised by
the assessee are allowed.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on this 01st day of June, 2018.
Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) �याियक सद�य �याियक सद�य /JUDICIAL MEMBER लेखा लेखा सद�य सद�य / ACCOUNTANT MEMBER �याियक �याियक सद�य सद�य लेखा लेखा सद�य सद�य
पुणे Pune; �दनांक Dated : 01st June, 2018 सतीश आदेश क� आदेश क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत
अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. 3. The CIT(A)-10, Pune 4. CIT-10, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “A Bench” Pune; 5. गाड� फाईल / Guard file. 6.
आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार
स�यािपत �ित //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune