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These Miscellaneous Applications at the instance of the Revenue arise out of the orders of the Tribunal in ITA Nos.58/Coch/2016 and 59/Coch/2016. The relevant assessment year is 2010-2011.

2. Brief facts of the case are as follows:

The Assessing Officer had imposed penalty u/s 271C of the I.T.Act, for the reason that there was delay caused in depositing the tax deducted at source for the financial year 2009-2010. Aggrieved by the imposition of penalty, the assessee had preferred appeals before the first appellate authority. The CIT(A) rejected the appeals filed by the assessee. On further appeal filed M/s.MIR Realtors Private Limited.

The Hon'ble High Court of Kerala in the case of M/s.U.S. Technologies International (P) Ltd., (2010) 195 Taxman 323 (Ker.) has observed in Para-3 of their order that "so much so, in our view failure to deduct or failure to remit recovered tax, both will attract Penalty under Section 271C of the Act."

The Hon'ble High Court has also made the following observations with regard to the levy of penalty u/s.271C.

M/s.MIR Realtors Private Limited.

6. We have heard the rival submissions and perused the material on record. Imposition of penalty u/s 271C is subject to the provisions of section 273B of the I.T.Act. The section 273B states that no penalty shall be imposed u/s 271C if the assessee is able to prove that there was reasonable cause for the said failure. The Tribunal had primarily allowed the appeals of the assessee by holding there was reasonable cause as mandated u/s 273B of the I.T.Act for the default in remittance of tax deducted at source into the Government account on time, and therefore, it was concluded by the Tribunal that the penalty u/s 271C of the I.T.Act is not warranted. The Tribunal has not made any specific finding as regards misrepresentation of fact by the assessee. This is clear from the findings of the Tribunal at para 8 and 15 of the impugned orders of the Tribunal. The Revenue in its MAs has not challenged the finding of the Tribunal that there was a reasonable cause for the delay in remittance of tax deducted at source into the Government account. Therefore, these MAs having not challenged the specific finding of the Tribunal that there was reasonable cause for the delay, cannot be entertained and the same are to be dismissed.

7. Before parting, it is to be mentioned that the learned DR had relied on the judgment of the Hon'ble jurisdictional High Court in the case of CIT v. Muthoot Bankers [(2017) 398 ITR 276 (Ker.)]. The judgment of the Hon'ble jurisdictional High Court specifically states that penalty u/s 271C could be waived only if the assessee could plead and prove that there was reasonable M/s.MIR Realtors Private Limited.

cause as mandated u/s 273B of the I.T.Act. In the instant cases, the Tribunal has categorically found that there was reasonable cause for the default and had cancelled the penalty u/s 271C of the I.T.Act. When Tribunal had taken a conscious decision, after examining the facts and circumstances of the case in detail, the finding of the Tribunal cannot stated to be suffering from error apparent on record, warranting our interference u/s 254(2) of the I.T.Act. It is ordered accordingly.