Income Tax Appellate Tribunal - Mumbai
Lake City Super Speciality Healthcare ... vs Addl. Cit (Tds), Thane on 11 January, 2017
आयकर अपीलीय अिधकरण " ई" यायपीठ मुब ं ई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI सव ी राजे , लेखा सद एवं पवनिसंह ाियक सद Before Shri Rajendra, A.M. and Shri Pawan Singh,J.M. आयकर अपील सं./ITA No.2922/Mum/2016 , िनधा रण वष /Assessment Year: 2009-10 आयकर अपील सं./ITA No.2923/Mum/2016 , िनधा रण वष /Assessment Year: 2009-10 आयकर अपील सं./ITA No.2924/Mum/2016 , िनधा रण वष /Assessment Year: 2009-10 आयकर अपील सं./ITA No.2925/Mum/2016 , िनधा रण वष /Assessment Year: 2009-10 Lake City Super Speciality Healthcare ACIT-TDS-Range Pvt. Ltd. Thane.
Shop Np.5 & 6, Sanskar Tower
Dharmaveer Road, Near Shree Imagine, Vs.
Panchpakhadi
Thane (W)-400 602.
PAN: AAACL 8805 F
(अपीलाथ /Appellant) ( यथ / Respondent)
Revenue by: Ms. Beena Santosh -DR
Assessee by: Ms. Devki Shah
सुनवाई क तारीख / Date of Hearing: 11.01.2017
घोषणा की तारीख / Date of Pronouncement: 11.01.2017
आयकर अिधिनयम,
अिधिनयम , 1961 क धारा 254(1)के
के अ तग त आदे श
Order u/s.254(1)of the Income-tax Act,1961(Act)
Per Bench:खंडपीठ के अनुसार
Challenging the orders,dated 20/01/2016,of the CIT(A)-1,Thane,the assessee has filed the present appeals.The effective ground of appeal is about levy of penalty u/s.272(2A)(k)of the Act. While passing the penalty order,the Assessing Officer (AO) observed that the assessee had filed quarterly returns of Text Deducted at Source(TDS)belatedly.He issued notice u/s.272(2A)(k)/ 274 r.w.s.200 (3) of the Act to show cause as to why and order imposing penalty for late filing of quarterly TDS returns should not be passed. In its response to the show cause notice,the assessee stated that delay in filing the TDS-returns was caused due to outsourcing of the filing of returns, that it had asked an outside-agency to file the quarterly returns, that the outside agency did not file the returns in time.The assessee relied upon certain case-laws in its support.
2.After considering the submission of the assessee, the AO held that it had not furnished any evidence to show that it was prevented by sufficient cause for delay in filing the text directed at source statement. He levied a penalty of Rs. 1.26 lakhs u/s.272(2A)(k) of the Act.
2922-25/M/12;Lake City
3.Aggrieved by the penalty order of the AO,the assessee preferred an appeal before the First Appellate Authority(FAA).Before him,it made elaborate submissions about late filing of the TDS statements.After considering the assessment order and the submissions of the assessee,he held that the assessee had not filed the quarterly statements in time,that the numbers of days of default in respect of each quarter had been calculated by the AO, that nothing was brought on record by the assessee to show as to why the outside agency had filed the TDS-statements late, that it had engaged professionals for specific job,that there should not have been any delay in filing the statements,that no evidence was furnished to show that efforts were made to obtain PAN.s of the directors,that the assessee had failed to establish reasonable and sufficient cause for delay in filing the TDS statements.Finally,he upheld the order of the AO imposing penalty.
4.During the course of hearing before us,the Authorised Representative (AR) contended that the assessee had not made any default in deducting the tax on various payments made,that it had deposited tax with in time period in all the quarters for the year under appeal,that all the directors of the company were doctors by profession,that the work of filing statements was outsourced to an agency,that that assessee relied entirely on the agency for TDS job, that assessee had been regularly in filing its TDS-returns in other assessment years, that the delay was only procedural and the default was not deliberate or intentional, that the late filing of the returns was a technical breach,that AY.2009-10 was the first year of introduction of 26AS.She relied upon the cases of ARK Corporation (172 taxman 339) Royal Metal Printers (P.) Ltd. (37SOT139) Rajasthan Tribal Area Development Co-Operative Federation Ltd (60TTJ427).The Departmental Representative (DR) supported the order of the AO and the FAA.
5.We have heard the rival submissions and perused the material before us we find that the assessee had not made any default in depositing the tax directed at source within prescribed time period in all the months for the year under consideration except for the month of July, 2008. There was delay of six days in depositing the tax for that month.It is a fact that the only default committed by the assessee was not filing the statements of TDS in time.We find that the assessee had argued that it had hired an outside agency to carry out the job of filing statements of TDS and the agency did not file the returns in time.In our opinion,the explanation filed by the assessee can be considered as one of the possible cause for filing belated returns.It is also to be remember -ed that the company is run by doctors.Section 273 B 2 2922-25/M/12;Lake City of the Act stipulates that penalty should not be levied if the assessee offers some reasonable and sufficient cause for any default. We have taken note of the fact that this was the first year when the new procedure(AS-26)was adopted by the Department.The AO/FAA have not challenged the finding that the tax was directed and deposited in time-except for one month when there was delay of six days only. We find that in similar circumstances the Tribunal,in the case of Rajasthan Tribal Area Development Co-Opera -tive Federation Ltd.(supra)deleted the penalty levied by the AO u/s. 272(2A)(k) of the Act.We would like to reproduce the relevant portion of the said order of the Tribunal and it reads as under-
"...... We have notice that there is no default on part of the appellant either in deducting the tax at source or in depositing the same into government account. This fact has not been disputed even by the learned Departmental Representative. The only default is in furnishing statements of TDS in Form No. 26 which in view of the appellant's explanation, is only a technical default, for which we are of the opinion that such a penal action is not justified, because the appellant before is purely of a technical or venial nature."
Respectfully following the above order of the Tribunal,we decide the effective ground of appeal in favour of the assessee and allow all appeals filed by the assessee i.e.ITA.s./2922- 25/Mum/ 2016.
As a result,appeals appeal,filed by the assessee,stand allowed. फलतः िनधा रती ारा दािखल क गई अपील मंजूर क जाती ह%.
Order pronounced in the open court on 11th , January 2017.
आदेश क घोषणा खुले &यायालय म 'दनांक 11 जनवरी, 2017 को क गई ।
Sd/- Sd/-
( पवन(सह/Pawan singh) (राजे&* / RAJENDRA)
&याियक सद+य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
मुंबई Mumbai; 'दनांकDated : 11.01.2017.
Jv.Sr.PS.
आदेश क ितिलिप अ ेिषत/Copy of the Order forwarded to :
1.Appellant /अपीलाथ 2. Respondent / यथ
3.The concerned CIT(A)/संब अपीलीय आयकर आयु , 4.The concerned CIT /संब आयकर आयु
5.DR " E " Bench, ITAT, Mumbai /िवभागीय ितिनिध, खंडपीठ,आ.अ. याया.मुंबई
6.Guard File/गाड फाईल स यािपत ित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपीलीय अिधकरण, मुंबई /ITAT, Mumbai.
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