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

ITA 7211/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9017 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 7211/MUM/2014 ASSESSMENT YEAR: 2010-11 M/S. ABHINAV KNOWLEDGE SERVICES P LTD. VS. ITO (TDS ) 1(1) 4/71 SAVARKAR SADAN, DR. M.B. RAUT MUMBAI SHIVAJI PARK DADAR MUMBAI 400028 PAN NO. AAHCA0788K (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. CHAITEE LONDHE, AR REVENUE BY: SHRI B.S. BIST, DR DATE OF HEARING : 10/0 1/2017 DATE OF PRONOUNCEMENT: 10/01/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR 2010-11. THE APPEAL IS DIRECTED AGAINST THE OR DER OF THE COMMISSIONER (APPEALS) 14, MUMBAI AND ARISES OUT OF THE ORDER UNDER SECTION 272A(2)(K) OF THE INCOME TAX ACT, 196 1 (THE ACT). 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LEARNED CIT(A) ERRED IN PASSING THE ORDER WITHOUT G IVING A REASONABLE OPPORTUNITY TO THE APPELLANT TO BE HEARD WITHOUT CO NSIDERING THE FACT THAT THE APPELLANT HAD REQUESTED FOR AN ADJOURNMENT . IT IS ALSO STATED THAT THE LEARNED CIT(A) ERRED IN IMPOSING PENALTY O F RS. 73,300/- U/S 272A(2)(K) OF THE ACT. FURTHER IT IS STATED THAT TH E LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HA D REASONABLE CAUSE FOR DELAY IN FILING THE TDS QUARTERLY STATEMENTS . ITA NO. 7211/MUM/2014 2 3. 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 RUL E 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 DELAY S IN SUBMISSION OF TDS RETURNS FOR THE F.Y. 2009-10 QUARTER WISE AN D IMPOSED A PENALTY OF RS. 73,300/-. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEAR NED CIT(A). WE FIND THAT THE LEARNED CIT(A) HAS STATED AT PARA 4 O F THE APPELLATE ORDER DATED 01.09.2014 THAT AT THE APPELLATE PROCEEDINGS, IN RESPONSE TO THE NOTICE OF HEARING, NONE ATTENDED NOR ANY WRITTEN SU BMISSION WAS FILED BY THE APPELLANT. THEN AT PARA 5 OF THE SAID ORDER, THE LEARNED CIT(A) HAS MENTIONED THAT SHE HAS CONSIDERED THE FA CTS OF THE CASE, THE SUBMISSION OF THE APPELLANT AND THE PENALTY ORD ER 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 ASS ESSEE BY THE LEARNED CIT(A). ALSO IT IS STATED BY HER THAT THE A SSESSEE HAD REASONABLE CAUSE FOR DELAY IN FILING THE TDS QUARTE RLY STATEMENTS. 6. THE LEARNED DR SUPPORTS THE ORDER PASSED BY THE LEARNED CIT(A) CONFIRMING THE PENALTY OF RS. 73,300/- LEVIE D 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 A TTENDED NOR ANY WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE WHEREA S AT PARA 5 SHE HAS MENTIONED THAT SHE HAS CONSIDERED THE SUBMISSIO N 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 MAT TER AFRESH AS PER THE PROVISIONS OF THE ACT, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO. 7211/MUM/2014 3 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/01/2017 SD/- SD/- (MAHAVIR SINGH) (N. K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI; DATED: 10/01/2017 BISWAJIT, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI