KAILASH MAHAL CO. OP HOUSING SOCIETY LTD,MUMBAI vs. ADDL CIT (TDS) RG 2, MUMBAI

ORDER PER G.S.PANNU,A.M:

The captioned appeal filed by the assessee pertaining to assessment year 2011-12 is directed against an order passed by CIT(A)- 59 Mumbai dated 08/01/2015 which in turn arises out of an order passed by the Assessing Officer under section 272A(2)(k) of the Income Tax Act, 1961 (in short ‘the Act’) dated 26/12/2011.

5. Having considered the rival stands, it is quite clear that the penalty in question is for delay in submission of the quarterly statement of TDS in form No.24Q, and not for the compliance requiring deduction of tax at source and deposit of the same with the Government Treasury. At the time of hearing, the Ld. Representative for the assessee pointed out that in the past or in the subsequent years there was no occasion for the assessee to deduct tax at source and in fact, even during the year under consideration it deducted tax at source on payment made to a contractor only. For this reason, the assessee was under a bonafide impression that it was to file only the Annual statement of TDS, which it did. In our considered opinion, having regard to the entire conspectus of facts and circumstances, in the present case, no penalty under section 272A(2)(k) of the Act is leviable. In fact, a perusal of the orders of the authorities below reveal that no particular justification is made out to levy penalty. It is a well settled proposition that no penalty can be levied merely because there is a provision in law. Therefore, in our view, the penalty levied of Rs. 49,779/-deserves to be deleted. We hold so.