ABHINAV KNOWLEDGE SERVICES P.LTD,MUMBAI vs. ITO (TDS) 1(1), MUMBAI

This is an appeal filed by the assessee. The relevant assessment year 2010-11. The appeal is directed against the order of the Commissioner (Appeals) – 14, Mumbai and arises out of the order under section 272A(2)(k) of the Income Tax Act, 1961 (the “Act’’).

The sole ground raised by the assessee in this appeal is that the learned CIT(A) erred in passing the order without giving a reasonable opportunity to the appellant to be heard without considering the fact that the appellant had requested for an adjournment. It is also stated that the learned CIT(A) erred in imposing penalty of Rs. 73,300/- u/s 272A(2)(k) of the Act. Further it is stated that the learned CIT(A) failed to appreciate the fact that the appellant had reasonable cause for delay in filing the TDS quarterly statements .

In a nutshell, the facts are that the Assessing Officer (AO), on examination of records, noted that the assessee had not filed the quarterly TDS statement in Form No. 26Q for the F.Y. 2009-10 within the time specified u/s 206 of the Act read with rule 37 of the Income Tax Rules 1962 for F.Y. 2009-10 which were required to be filed at the end of every quarter. The AO compiled the delays in submission of TDS returns for the F.Y. 2009-10 quarter wise and imposed a penalty of Rs. 73,300/-.

The assessee preferred an appeal before the learned CIT(A). We find that the learned CIT(A) has stated at para 4 of the appellate order dated 01.09.2014 that at the appellate proceedings, in response to the notice of hearing, none attended nor any written submission was filed by the appellant. Then at para 5 of the said order, the learned CIT(A) has mentioned that she has considered the facts of the case, the submission of the appellant and the penalty order u/s 272A(2)(k). 5. The learned counsel of the assessee submits that a reasonable opportunity of being heard was not given to the assessee by the learned CIT(A). Also it is stated by her that the assessee had reasonable cause for delay in filing the TDS quarterly statements. 6. The learned DR supports the order passed by the learned CIT(A) confirming the penalty of Rs. 73,300/- levied by the AO u/s 272A(2)(k) of the Act. 7. We have heard the rival submissions and perused the relevant material on record. We find that the learned CIT(A) has mentioned at para 4 of the appellate order dated 01.09.2014 that at the appellate proceedings in response to notice of hearing none attended nor any written submission was filed by the assessee whereas at para 5 she has mentioned that she has considered the submission of the assessee. The above observation of the learned CIT(A) seems contradictory in nature. 7.1 In view of the above, we set aside the order of the learned CIT(A) and restore it back to her to decide the matter afresh as per the provisions of the Act, after giving reasonable opportunity of being heard to the assessee.