Aadhar Medical & Surgical Critical Care Unit,, Nanded v. Joint Commissioner of Income-tax,,

ITA 1730/PUN/2015 | 2011-2012
Pronouncement Date: 07-10-2016 | Result: Allowed

Appeal Details

RSA Number 173024514 RSA 2015
Assessee PAN ABIFS3627E
Bench Pune
Appeal Number ITA 1730/PUN/2015
Duration Of Justice 9 month(s) 7 day(s)
Appellant Aadhar Medical & Surgical Critical Care Unit,, Nanded
Respondent Joint Commissioner of Income-tax,,
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 07-10-2016
Assessment Year 2011-2012
Appeal Filed On 31-12-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE . . ! # $ BEFORE SHRI R.K. PANDA AM AND SHRI VIKAS AWASTHY JM SL. NO. ITA NO(S). NAME OF APPELLANT NAME OF RESPONDENT ASST. YEAR 1 NO.1728/PN/2015 SANJEEVANI CRITICAL CARE CENTRE PLOT NO.44 & 45 SHIVAJI NAGAR ROAD WADIYA COMPOUND NANDED 431 602 PAN : ABIFS3627E JCIT TDS RANGE NASHIK 2011 - 12 2 NO.1730/PN/2015 AADHAR MEDICAL & SURGICAL CRITICAL CARE UNIT PLOT NO.11 WADIYA COMPOUND NEAR ASHWINI HOSPITAL SHIVAJI NAGAR NANDED 431 602 PAN : AAPFA5780L JCIT TDS RANGE NASHIK 2011 - 12 ASSESSEE BY : SHRI Y.S. NAGLA REVENUE BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA AM : THE ABOVE 2 APPEALS FILED BY THE RESPECTIVE ASSESSEES A RE DIRECTED AGAINST THE SEPARATE ORDERS DATED 07-10-2015 AND 01-10- 2015 RESPECTIVELY OF THE CIT(A)-I AURANGABAD RELATING TO ASSESSMENT YEAR 2011-12. SINCE IDENTICAL GROUNDS HAVE BEEN RAISE D BY RESPECTIVE ASSESSEES THEREFORE THESE WERE HEARD TOGETHE R AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.1728/PN/2015 : 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM RUNNING A CRITICAL CARE CENTRE AT NANDED FOR / DATE OF HEARING :07.07.2016 / DATE OF PRONOUNCEMENT:07.10.2016 2 ITA NOS.1728 AND 1730/PN/2015 PROVIDING MEDICAL FACILITIES TO PATIENTS. THE ASSESSEE FIRM HA D DEDUCTED TDS ON PAYMENTS MADE TO DOCTORS AND PROFESS IONALS. IT WAS SEEN THAT THE ASSESSEE HAS DEDUCTED AND PAID TDS BELATEDLY WITHOUT ANY APPARENT REASONS. MOREOVER THERE WAS DELA Y IN E-FILING OF QUARTERLY STATEMENTS U/S.200(3) R.W. RULE 31A OF THE IN COME TAX RULES. THERE WAS DELAY IN FILING OF QUARTERLY STATEMENTS FOR ALL THE 4 QUARTERS. IT WAS NOTED THAT THE STATEMENT IN FORM 26 Q WAS FILED BELATEDLY FOR THE FIRST QUARTER BY 531 DAYS FOR THE SECO ND QUARTER BY 439 DAYS FOR THE THIRD QUARTER BY 347 DAYS AND FOR THE FOURTH QUARTER BY 227 DAYS. ON BEING QUESTIONED BY THE JCIT (TDS) THE ASSESSEE EXPLAINED THAT THE DELAY HAD OCCURRED IN FILING OF E-TDS STATEMENT DUE TO LACK OF TECHNICAL KNOWLEDGE AND UNAWAR ENESS ABOUT ELECTRONIC FILING. HOWEVER THE JCIT (TDS) REJECTED TH E ABOVE EXPLANATION OF THE ASSESSEE AND HELD THAT IT WAS THE ON EROUS RESPONSIBILITY OF THE ASSESSEE FIRM AND IT HAD TO ACT AS A CUSTODIAN OF TAXES SO DEDUCTED TO DEPOSIT IT TO THE GOVERNMENT ACC OUNT AND FILE THE QUARTERLY E-TDS RETURN. THE JCIT (TDS) FURTHER HELD THAT THE NORMAL BUSINESS AND OTHER COMMERCIAL ACTIVITY OF THE ASS ESSEE CONTINUED WITHOUT ANY INTERRUPTION AND IT WAS NOT PREVEN TED BY ANY EXCEPTIONAL CIRCUMSTANCES WHICH PREVENTED IT TO FILE THE QU ARTERLY E- TDS RETURN. ACCORDING TO HIM THE DEFAULT CONTINUED QUART ER AFTER QUARTER AND THE SAME WAS INEXPLICABLE. HE THEREFORE HELD THAT NON FILING OF TDS RETURN WAS NOT A TECHNICAL OR MINOR BREACH OF LAW AND MERE PAYMENT OF TDS DID NOT FULFIL THE PURPOSE OF THE RETURN . ACCORDINGLY HE HELD THAT THE ASSESSEE DEDUCTOR HAD RE NDERED ITSELF LIABLE TO BE PENALIZED U/S.272A(2)(K) R.W.S.200(3). HE ACCORDINGLY LEVIED PENALTY OF RS.89 073/- U/S.272A(2)(K) OF THE I.T. ACT. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE AO. 3 ITA NOS.1728 AND 1730/PN/2015 3. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THAT THE ORDER PASSED BY CIT(A) AURANGABAD VIDE ORDER DATED 07-10-2015 IN APPEAL NO.663/2-13-14 IS ILLEGAL ARBI TRARY UNCALLED FOR AND WITHOUT ANY BASIS AND HE IS NOT JUSTIFIED IN DISMISSIN G THE APPEAL. 2. THAT THE PENALTY IMPOSED BY THE JT.CIT (TDS) RAN GE NASHIK U/S.272A(2)(K) OF THE I.T. ACT 1961 VIDE HIS ORDER D ATED 04-06-2013 AMOUNTING TO RS.89 073/- BEING ILLEGAL ARBITRARY U NCALLED FOR AND AGAINST THE FACTS ON RECORD AND THE LD.CIT(A) SHOULD H AVE QUASHED THE SAME. 3. THAT THE STATEMENT OF FACTS AND GROUNDS OF APPEAL BEFORE THE CIT(A) MAY KINDLY BE CONSIDERING AS A PART OF THIS GRO UNDS OF APPEAL. 4. THE DEFAULT IS NOT DELIBERATE OR INTENTIONAL; THE RE IS NO WILLFUL NEGLECT BUT LACK OF KNOWLEDGE OF LAW AND SUBMISSION O F TDS RETURN THROUGH ELECTRONIC SYSTEM. 5. IT IS SETTLED LAW THAT AN ORDER IMPOSING PENALTY FO R FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS RESULT OF A QUASI C RIMINAL PROCEEDING. PENALTY WILL NOT BE LEVIED MERELY BECAUSE IT IS LAWFU L TO DO SO. 6. WE HAVE RELIED ON THE DECISION OF THE HONBLE MAD RAS HIGH COURT IN THE CASE OF CIT VS. K.P.V.S. MOHAMMAD ROWTHER & CO . 232 ITR 176 (MAD.) HELD THAT IGNORANCE OF LAW CAN BE A REASONABL E CAUSE FOR THE FAILURE AND DELETION OF PENALTY WAS JUSTIFIED. THIS D ECISION HAVE CONSIDERED BY APPELLATE TRIBUNAL AHMEDABAD BENCH B IN CASE OF ACIT TDS AHMEDABAD VS. LOK PRAKASHAN LTD. AHMEDABAD ITA NO.2815/AHD/2009 (COPY ENCLOSED). CONSIDERING ABOVE GROUNDS WE REQUEST TO THE HONBLE AP PELLATE TRIBUNAL PLEASE CANCEL THE PENALTY LEVIED U/S.272A(2) (K) OF THE I.T. ACT 1961 BY JT. CIT (TDS) RANGE NASHIK. 4. AFTER HEARING BOTH THE SIDES WE FIND THE ONLY ISSUE TO BE DECIDED IN THE IMPUGNED APPEAL IS REGARDING THE LEVY OF PE NALTY U/S.272A(2)(K) OF THE I.T. ACT. WE FIND THE TRIBUNAL IN THE CA SE OF NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT IN ITA NO.832/PN/20 16 FOR A.Y. 2011-12 AND BUNCH OF OTHER APPEALS VIDE ORDER DATED 07-10-2016 HAS DECIDED AN IDENTICAL ISSUE AND HAS OBSER VED AS UNDER: 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. IN THIS BUNCH OF APPEALS THE ISSUE WHICH ARISES FOR ADJUDI CATION IS AGAINST THE LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT FOR LATE FILING OF 4 ITA NOS.1728 AND 1730/PN/2015 TDS STATEMENTS / RETURNS. IN THIS REGARD REFERENCE I S BEING MADE TO THE RELEVANT PROVISIONS OF THE ACT. UNDER CHAPTER XVII O F THE ACT DUTY IS UPON THE PERSON MAKING CERTAIN PAYMENTS TO DEDUCT TAX AT SOURCE UNDER THE RESPECTIVE SECTIONS. THE SAID TAX DEDUCTED AT SOUR CE IS DUE TO BE THE INCOME RECEIVED BY THE DEDUCTEE AS PER SECTION 198 OF THE ACT. SECTION 199 OF THE ACT FURTHER PROVIDES THAT WHERE ANY DEDUC TION IS MADE UNDER THE CHAPTER AND PAID TO THE CENTRAL GOVERNMENT THE N THE SAME IS TO BE TREATED AS PAYMENT OF TAX ON BEHALF OF THE PERSON FRO M WHOSE INCOME SUCH DEDUCTION IS MADE. 18. SECTION 200 OF THE ACT LAYS DOWN THE DUTY OF THE PERSON DEDUCTING TAX WHICH READS AS UNDER:- 200. (1) ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WIT H THE FOREGOING PROVISIONS OF THIS CHAPTER SHALL PAY WITHIN THE PRE SCRIBED TIME THE SUM SO DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2) ANY PERSON BEING AN EMPLOYER REFERRED TO IN SU B-SECTION (1A) OF SECTION 192 SHALL PAY WITHIN THE PRESCRIBED TIME THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. (2A) IN CASE OF AN OFFICE OF THE GOVERNMENT WHERE THE SUM DEDUCTED IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR TAX REFERRED TO IN SUB-SECTION(1A) OF SECTION 192 HAS BEEN PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHOUT THE PRODUCTION OF A CHALLAN THE PAY AND ACCOUNTS OFFICER OR THE TREASURY OFFICER OR THE CHEQUE DRAWI NG AND DISBURSING OFFICER OR ANY OTHER PERSON BY WHATEVER NAME CALLE D WHO IS RESPONSIBLE FOR CREDITING SUCH SUM OR TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR TO THE PERSON AUTHORISED BY SUCH AUTHORITY A STATEMEN T IN SUCH FORM VERIFIED IN SUCH MANNER SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED. (3) ANY PERSON DEDUCTING ANY SUM ON OR AFTER THE 1S T DAY OF APRIL 2005 IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS CH APTER OR AS THE CASE MAY BE ANY PERSON BEING AN EMPLOYER REFERRED TO IN SUB-SECTION (1A) OF SECTION 192 SHALL AFTER PAYING THE TAX DEDUCTED TO THE CREDIT OF THE CENTRAL GOVERNMENT WITHIN THE PRESCRIBED TIME PREP ARE SUCH STATEMENTS FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED INCOME-TAX AUTHORITY OR THE PERSO N AUTHORISED BY SUCH AUTHORITY SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND WITHIN SUCH TIME AS MAY BE PRESCRIBED: PROVIDED THAT THE PERSON MAY ALSO DELIVER TO THE PRESCRIBED AUTHORITY A CORRECTION STATEMENT FOR RECTIFICATION OF ANY MISTA KE OR TO ADD DELETE OR UPDATE THE INFORMATION FURNISHED IN THE STATEMENT D ELIVERED UNDER THIS SUB- SECTION IN SUCH FORM AND VERIFIED IN SUCH MANNER AS MAY BE SPECIFIED BY THE AUTHORITY. 19. UNDER SECTION 200(1) OF THE ACT IT IS PROVIDED T HAT ANY PERSON DEDUCTING ANY SUM IN ACCORDANCE WITH THE PROVISIONS OF THE CHAPTER SHALL PAY WITHIN THE PRESCRIBED TIME THE SUM SO DEDUCT ED TO THE CREDIT OF THE CENTRAL GOVERNMENT OR AS THE BOARD DIRECTS. U NDER SECTION 200(2) OF THE ACT ANY PERSON BEING AN EMPLOYER AS R EFERRED TO IN SUB- SECTION (1A) OF SECTION 192 OF THE ACT SHALL PAY WITHIN THE PRESCRIBED TIME THE TAX TO THE CREDIT OF THE CENTRAL GOVERNME NT OR AS THE BOARD DIRECTS. UNDER SUB-SECTION (2A) OF THE ACT IT IS PROV IDED THAT WHERE THE SUM HAS BEEN DEDUCTED IN ACCORDANCE WITH FOREGOING PR OVISIONS OF THE CHAPTER BY THE OFFICE OF THE GOVERNMENT THEN DUTY IS UPON THE TREASURY OFFICER OR THE DRAWING & DISBURSING OFFICER O R ANY OTHER PERSON TO DELIVER OR CAUSE TO BE DELIVERED TO THE PR ESCRIBED INCOME TAX 5 ITA NOS.1728 AND 1730/PN/2015 AUTHORITIES OR TO THE PERSON AUTHORIZED BY SUCH AUTHO RITY STATEMENT IN SUCH FORM VERIFIED IN SUCH MANNER SETTING FORTH SUCH PARTICULARS WITHIN SUCH TIME AS MAY BE PRESCRIBED. UNDER SECTION 200(3) O F THE ACT SIMILAR RESPONSIBILITY IS ON ANY PERSON DEDUCTING ANY SUM ON OR AFTER FIRST DAY OF APRIL 2005 IN ACCORDANCE WITH FOREGOIN G PROVISIONS OF THE CHAPTER INCLUDING ANY PERSON AS AN EMPLOYER REFERRE D TO IN SECTION 192(1A) OF THE ACT. THE ONUS IS UPON SUCH PERSON THAT HE SHALL AFTER PAYING THE TAX TO THE CREDIT OF CENTRAL GOVERNMENT WITHIN PRESCRIBED TIME PREPARE SUCH STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED AND DELIVER OR CAUSE TO BE DELIVERED TO THE PRESCRIBED IN COME TAX AUTHORITY OR ANY PERSON SO AUTHORIZED SUCH STATEMENT IN SUCH FORM AND VERIFIED IN SUCH MANNER AND SETTING FORTH SUCH PARTICULARS AND W ITHIN SUCH TIME AS MAY BE PROVIDED. THE DUTY IS UPON A PERSON DEDUCTI NG ANY SUM IN ACCORDANCE WITH VARIOUS PROVISIONS UNDER THE CHAPTER A ND ALSO UPON AN EMPLOYER WHO IS MAKING DEDUCTION OUT OF THE PAYMENTS MADE TO THE EMPLOYEES THEN SUB-SECTION (3) REQUIRES THAT THE DEDUC TOR IS TO PREPARE A STATEMENT FOR SUCH PERIOD AS MAY BE PRESCRIBED WHICH IS TO BE DELIVERED TO THE PRESCRIBED AUTHORITY IN SUCH FORM A ND VERIFIED AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED. TH E SAID STATEMENT IS TO BE DELIVERED WITHIN SUCH TIME AS MAY BE PRESCRIBE D. 20. IN OTHER WORDS ANY DEDUCTOR DEDUCTING ANY SUM O N OR AFTER FIRST DAY OF APRIL 2005 IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER HAS THE FOLLOWING DUTIES I.E. AFTER PAYING THE TAX DEDUCTED AT SOURCE CREDIT TO THE CENTRAL GOVERNMENT THE TDS STATEMENTS WITHIN PRESCRIB ED TIME SHALL BE PREPARED AND FILED. RULES 31A OF THE RULES PROVID E THE TIME LIMIT FOR DEPOSIT OF THE TAX DEDUCTED STATEMENT AS PER SECTION 2 00(3) OF THE ACT. THE TDS STATEMENTS ARE TO BE DEPOSITED QUARTERLY I.E. QUARTER ENDING 30 TH JUNE 30 TH SEPTEMBER 31 ST DECEMBER AND 31 ST MARCH OF EACH FINANCIAL YEAR AND THE DUE DATE FOR FURNISHING THE T DS STATEMENTS IS 15 TH JULY FOR THE FIRST QUARTER 15 TH OCTOBER FOR THE SECOND QUARTER 15 TH JANUARY FOR THE THIRD QUARTER AND 15 TH MAY OF THE IMMEDIATELY FOLLOWING FINANCIAL YEAR FOR THE FOURTH QUARTER I.E. 31 ST MARCH. THE SAID STATEMENTS COULD BE FURNISHED EITHER IN PAPER FORM OR ELECTRONI CALLY. HOWEVER SUBSEQUENT TO THE AMENDMENT BY IT (SIXTH) AMENDMENT R ULES 2010 WITH RETROSPECTIVE EFFECT FROM 01.04.2010 IT WAS PRO VIDED THAT FURNISHING OF STATEMENTS ELECTRONICALLY IN ACCORDANCE WITH THE FORMAT AND STANDARDS PRESCRIBED BECAME MANDATORY. THE DEDUCT OR IN THE SAID STATEMENT OF TAX DEDUCTED AT SOURCE WAS COMPULSORILY RE QUIRED TO QUOTE ITS TAX DEDUCTION AND COLLECTION ACCOUNT NUMBER I.E. TAN NUMBER. FURTHER QUOTE ITS PERMANENT ACCOUNTANT NUMBER EXCEP T IN THE CASE WHERE THE DEDUCTOR WAS OFFICE OF GOVERNMENT AND ALSO QUOTE PAN NUMBER OF ALL THE DEDUCTEES. FURTHER THE DEDUCTOR WAS REQUIRED TO FURNISH THE PARTICULARS OF TAX PAID TO THE CENTRAL GO VERNMENT INCLUDING BOOK IDENTIFICATION NUMBER OR CHALLAN INDICATION NU MBER AS THE CASE MAY BE. HE WAS ALSO REQUIRED TO FURNISH THE PARTICULA RS OF AMOUNT PAID OR CREDITED ON WHICH TAX WAS NOT DEDUCTED. 21. IN VIEW OF VARIOUS PROVISIONS OF THE ACT AS POINTE D OUT ABOVE THE SUBSTITUTION WAS MADE BY INCOME TAX (SIXTH) AMENDMENT RULES 2010 AND WAS APPLICABLE FOR THE FINANCIAL YEAR 2010-11. SINCE E-COMPLIANCE OF TDS RETURNS WAS INTRODUCED IN THE SAID FINANCIAL YE AR THERE WAS TIME AND AGAIN AMENDMENTS/CORRECTIONS IN ORDER TO MAKE SYSTE M OF FILING TDS RETURNS USER-FRIENDLY. THE LEARNED AUTHORIZED RE PRESENTATIVE FOR 6 ITA NOS.1728 AND 1730/PN/2015 THE ASSESSEE HAS POINTED OUT THAT THERE WERE ABOUT 18 A MENDMENTS / CORRECTIONS IN THIS REGARD. IN THE PRESENT SET OF APP EALS BEFORE US ADMITTEDLY THERE WAS DEFAULT IN FURNISHING E-TDS STAT EMENTS LATE FOR THE RESPECTIVE QUARTERS BY DIFFERENT ASSESSEE BUT ALL RE LATING TO ASSESSMENT YEAR 2011-12. THE QUESTION WHICH ARISES FOR AD JUDICATION BEFORE US IS WHETHER IN SUCH CASES WHERE E-TDS WAS MADE C OMPULSORY FOR THE INSTANT ASSESSMENT YEAR AND WHERE THE SOFTWARE WA S NOT USER- FRIENDLY AND REQUIRED AMENDMENTS AT THE END OF THE G OVERNMENT ITSELF FROM TIME TO TIME AND THE COMPLIANCE BEING A COMPLE X PROCEDURE INTRODUCED FOR THE FIRST TIME AND WHERE ORIGINALLY T HE DEDUCTORS WERE NOT DEFAULT IN DEPOSITING THE PAPER TDS RETURNS DOES THE ASSESSEE DEDUCTOR HAVE REASONABLE CAUSE FOR NOT FURNISHING THE SAID E-TDS RETURNS IN TIME. IN THIS REGARD REFERENCE IS TO BE M ADE TO THE PROVISIONS OF SECTION 273B OF THE ACT WHERE IT HAS BEEN PROVIDE D THAT IN CASE A PERSON ESTABLISHES OR PROVES THAT HE HAD REASONABLE CAUSE FOR THE FAILURE TO COMPLY WITH THE PROVISIONS OF VARIOUS SECTIO NS PROVIDED IN SECTION 273B OF THE ACT THEN NO PENALTY SHALL BE IMP OSABLE ON SUCH PERSON FOR THE SAID FAILURE. READING OF SECTION 273B OF THE ACT SHOWS THAT UNDER IT THE SECTION REFERS TO ALONG WITH MANY OTHER SECTIONS CLAUSE (C) OR CLAUSE (D) OF SUB-SECTION (1) OR SUB-SECTIO N (2) OF SECTION 272A OF THE ACT. WHAT IS RELEVANT FOR ADJUDICATION BEFORE US IS SECTION 272A(2) OF THE ACT SINCE PENALTY HAS BEEN LEVIED FOR DEFAULT IN FURNISHING E-TDS RETURNS UNDER SECTION 272A(2)(K) OF T HE ACT. SINCE SECTION 273B OF THE ACT COVERS THE CASES OF LEVY OF PEN ALTY UNDER SECTION 272A(2) OF THE ACT THEN IN LINE WITH THE PROVISIONS OF SAID SECTION IN CASE A PERSON ESTABLISHES ITS CASE OF REASONABLE CAUSE FOR N OT COMPLYING WITH THE PROVISIONS OF SAID SECTION THEN THE SECTION PR OVIDES THAT SUCH A PERSON SHALL NOT BE LIABLE TO THE PENALTY IMPOSABLE FO R THE SAID FAILURE I.E. UNDER SECTION 272A(2) OF THE ACT. THE CIT(A) I N THE CASE OF SEVERAL ASSESSEE BEFORE US HAS WRONGLY COME TO THE CONCLUSION THAT THE PROVISIONS OF SECTION 273B OF THE ACT DO NOT COVER THE DEFAULTS UNDER SECTION 272A(2)(K) OF THE ACT. WE REVERSE THE FINDIN G OF CIT(A) IN THIS REGARD. 22. NOW COMING TO THE CASE OF REASONABLENESS PUT UP B EFORE US BY DIFFERENT ASSESSEE. THE FIRST PLEA RAISED BY ALL THE ASSESSE E IS THAT WHERE THE COMPLIANCE TO THE PROVISIONS OF THE ACT WAS COMPLI CATED AND DIFFICULT AND IN THE ABSENCE OF ANY TECHNICAL SUPPORT IN THIS REGARD DEFAULT IF ANY IN FURNISHING THE TDS RETURNS LATE SHO ULD BE CONDONED. ANOTHER PLEA RAISED BY SOME OF THE ASSESSEE WAS THAT WHER E THE TAX DEDUCTED AT SOURCE WAS NOT PAID IN TIME E-TDS RETUR NS AS SUCH COULD NOT BE FILED AND HENCE THE ASSESSEE WAS PREVENTED BY RE ASONABLE CAUSE IN NOT FILING E-TDS RETURNS IN TIME AND AS SUCH NO M ERIT IN LEVY OF PENALTY. ANOTHER PLEA RAISED BEFORE US IS THAT CHARGI NG OF FEES FOR EACH DAY OF DEFAULT AND THEN RESTRICTING THE SAME TO THE TAX DEDUCTED AT SOURCE WAS NOT CORRECT. ONE ANOTHER ASPECT OF REASONAB LENESS WAS THAT IN CASE THE RETURNS FOR QUARTER 1 WAS FILED BELATEDLY THEN THE RETURNS FOR CONSEQUENT QUARTERS ALSO GOT DELAYED FOR NO DEFAULT AN D AS SUCH NO PENALTY WAS LEVIABLE FOR SUCH QUARTERS. DIFFERENT LEA RNED AUTHORIZED REPRESENTATIVES APPEARING BEFORE US HAS MADE REFERENCE TO THE DECISIONS OF VARIOUS BENCHES OF TRIBUNAL. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE ALLA HABAD HIGH COURT IN RAJA HARPAL SINGH INTER COLLEGE VS. PRL. CIT (SUPRA) AND CHANDIGARH BENCH OF TRIBUNAL IN CENTRAL SCIENTIFIC INSTRUMENTS O RGANIZATION VS. 7 ITA NOS.1728 AND 1730/PN/2015 JCIT (TDS) (SUPRA). ONE LAST ASPECT POINTED OUT BY T HE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE C IT(A) HAS ACKNOWLEDGED THAT THERE WAS REASONABLE CAUSE IN NOT F URNISHING E-TDS RETURNS IN TIME. HOWEVER NO BENEFIT OF THE SAME WAS GIVEN TO THE ASSESSEE BECAUSE THE CIT(A) WAS OF THE VIEW THAT THE PRO VISIONS OF SECTION 273B OF THE ACT DO NOT COVER PENALTY LEVIABL E UNDER SECTION 272A(2)(K) OF THE ACT. 23. FIRST OF ALL WE SHALL DEAL WITH THE LAST SUBMISSIONS OF THE ASSESSEE THAT UNDER THE PROVISIONS OF SECTION 273B OF THE ACT THE PROVISIONS OF SECTION 272A(2)(K) OF THE ACT ARE REFERR ED AND IN CASE THE PERSON ESTABLISHES ITS CASE OF REASONABLE CAUSE THEN NO PE NALTY IS TO BE LEVIABLE FOR SUCH DEFAULTS. THE CASE PUT UP BY THE ASSE SSEE WAS THAT WHERE TAX WAS DEDUCTED AT SOURCE AND MERELY BECAUSE E- TDS STATEMENTS / RETURNS WERE NOT FILED IN TIME DOES NOT RE SULT IN ANY LOSS OF REVENUE AND HENCE NO MERIT IN LEVY OF PENALTY UNDE R SECTION 272A(2)(K) OF THE ACT. THE CLAIM OF DEDUCTION OF T AX DEDUCTED AT SOURCE ITS PAYMENT TO THE TREASURY TO THE GOVERNMENT AND THE REAFTER THE CREDIT TO BE ALLOWED TO THE DEDUCTEE OF TAX DEDUCTE D FROM HIS ACCOUNT ALL WORK ON THE PRINCIPLE THAT THE TAX IS COLLECTED AND DEPOSITED IN THE ACCOUNT OF THE GOVERNMENT AS INCOME IS EARNED. IN OT HER WORDS THE SAID PROVISIONS OF TAX DEDUCTED ARE ADVANCE PAYMENTS OF TAX AS YOU EARN THE INCOME. TAXES ARE DEDUCTED BY THE DEDUCTOR OUT OF PAYMENTS DUE TO THE DEDUCTEE AND SUCH TAX DEDUCTED IS THE INCOME OF D EDUCTEE. THE CREDIT FOR TAX DEDUCTION AT SOURCE WOULD BE ALLOWED TO THE DEDUCTEE ONLY AFTER THE TAX DEDUCTED AT SOURCE IS DEPOSITED IN THE CREDIT OF THE GOVERNMENT AND THE DEDUCTOR FILES THE COMPLIANCE REP ORT IN THIS REGARD BY WAY OF E-TDS RETURNS. THUS IT IS OBLIGATORY UPON THE PERSON DEDUCTING TAX TO DEPOSIT THE TAX DEDUCTED AT SOURCE AND ALSO TO FURNISH STATEMENT DECLARING TAX DEDUCTION MADE FROM THE ACCO UNT OF VARIOUS DEDUCTEES. EARLIER PROVISIONS WERE TO BE COMPLIED WIT H MANUALLY BY FILING THE TDS RETURNS IN PAPER FORM. HOWEVER AS PE R IT (SIXTH) AMENDMENT RULES 2010 WITH RETROSPECTIVE EFFECT FROM 01.04.2010 THE DEDUCTOR WAS ASKED TO FILE E-TDS STATEMENTS FOR WHICH I NFRASTRUCTURE WAS PROVIDED AND IT WAS REQUIRED THAT THE ASSESSEE COMPLI ES TO THE SAID FILING OF E-TDS RETURNS. HOWEVER SINCE ASSESSMENT YEAR 2011-12 WAS THE FIRST YEAR OF INTRODUCTION OF SUCH FACILITIES OF E-TDS RETURNS THERE WERE CERTAIN HINDRANCES WHICH WERE TAKEN CARE OF BY THE AUTHORITIES BY WAY OF VARIOUS AMENDMENTS INTRODUCED IN THIS BEHALF. THE CASE OF THE ASSESSEE ON THE OTHER HAND IS THAT THEY WERE SMALL TAX PAYERS AND IN THE ABSENCE OF TECHNICAL GUIDANCE PROVIDED AND BECAUSE OF TECHNICAL HITCHES THE TDS RETURNS COULD NOT BE FILED IN TIME. MOST OF THE ASSESSEE BEFORE US HAVE PAID THE TAX DEDUCTED AT SOURCE TO THE TREASURY WITHIN TIME FRAME BUT HAVE DEFAULTED IN FILING E-TDS STATEM ENTS. IN SOME OF THE CASES THERE IS DEFAULT IN PAYMENT OF TAX DEDUCTED AT SOURCE AND CONSEQUENTLY DELAY IN FILING THE E-TDS RETURNS. THE QUESTION WHICH ARISES IS WHETHER IN THE ABOVE SAID SCENARIO CAN THE PR OVISIONS OF SECTION 273B OF THE ACT BE APPLIED IN ORDER TO DECID E THE ISSUE OF LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. 24. THE HONBLE PUNJAB & HARYANA HIGH COURT IN HMT LTD. TRACTOR DIVISION VS. CIT (2005) 274 ITR 540 (P&H) HAD HELD T HAT WHERE THE TAX DEDUCTED AT SOURCE HAD BEEN PAID IN TIME AND THE NEC ESSARY RETURNS IN RESPECT THERETO WERE FILED IN TIME WITH THE INCOME T AX DEPARTMENT ON 8 ITA NOS.1728 AND 1730/PN/2015 MERE LATE ISSUE OF TAX DEDUCTION CERTIFICATE THERE W AS NO LOSS TO THE REVENUE AND THE DELAY IN FURNISHING THE TAX DEDUCTIO N CERTIFICATE WAS HELD TO BE MERELY TECHNICAL OR VENIAL IN NATURE AND PENALTY LEVIED UNDER SECTION 272A(2)(K) OF THE ACT WAS DELETED. IT MAY BE CLARIFIED HEREIN THAT EARLIER UNDER SECTION 272A(2)(K) OF THE ACT PE NALTY WAS LEVIABLE WHERE THE TAX DEDUCTION CERTIFICATE WAS NOT ISSUED IN TIME. HOWEVER BY FINANCE (NO.2) ACT 2004 W.E.F. 01.04.2005 IT HAS B EEN PROVIDED THAT WHERE A PERSON FAILS TO DELIVER OR CAUSE TO BE DELIVER COPY OF STATEMENT WITHIN TIME SPECIFIED IN SECTION 200(3) OF THE ACT OR THE PROVISO TO SECTION 206C(3) OF THE ACT THEN HE SHALL PAY BY WAY OF PENALTY SUM OF RS.100/- FOR EVERY DAY OF DEFAULT. IT IS FURTHER PRO VIDED UNDER THE SAID SUB-SECTION THAT THE AMOUNT OF PENALTY FOR FAILURE SHA LL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTABLE AS THE CASE MAY BE. IT IS FURTHER PROVIDED THAT NO PENALTY SHALL BE LEVIED UNDER CLAUSE (A) FOR FAILURE TO FURNISH THE STATEMENT UNDER SECTION 200(3) OF THE ACT OR PROVISO TO SECTION 206C(3) OF THE ACT ON OR AFTER FIRST DAY OF JULY 2012. 25. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS PLACED STRONG RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE ALLAHABAD HIGH COURT IN RAJA HARPAL SINGH INTER COLLEGE VS. PR L. CIT (SUPRA) FOR THE PROPOSITION THAT WHERE THE ETDS STATEMENT WAS NOT FIL ED IN TIME THEN PENALTY UNDER SECTION 272A(2)(K) OF THE ACT HAS BEEN HELD TO BE LEVIABLE. IN THE FACTS OF THE SAID CASE BEFORE THE HO NBLE HIGH COURT THE ASSESSEE WAS DEDUCTING THE TAX AT SOURCE BUT HAD NOT FILE D THE E-TDS RETURNS FOR FIVE SUCCESSIVE ASSESSMENT YEARS STARTING FROM 2 008-09 TO 2012-13. THE ASSESSEE FAILED TO FURNISH ANY EXPLANATION BEFORE THE ASSESSING OFFICER FOR THE SAID DEFAULT AND ONLY ON THE L AST DATE IT WAS POINTED OUT THAT SINCE THE PRINCIPAL OF COLLEGE HAD JOINED RECENTLY IT WOULD TAKE SOME TIME TO COLLECT THE RECORDS FOR FILIN G THE E-TDS STATEMENTS. THE ASSESSEE HOWEVER FAILED TO COMPLY WIT H NOTICE AND THE ASSESSING OFFICER HELD THE ASSESSEE TO BE LIABLE FOR LEVY O F PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. BEFORE THE CIT(A) T HE ASSESSEE FOR THE FIRST TIME OFFERED AN EXPLANATION THAT PRIOR TO JOIN ING REGULAR PRINCIPAL IN THE COLLEGE ON 25.01.2010 ONLY OFFICIATING PRIN CIPAL HAD BEEN WORKING WHO DID NOT HAVE IDEA OF E-TDS STATEMENTS AN D REQUIREMENT OF FILING THE SAME. THE TRIBUNAL NOTED THAT THE APPELL ATE AUTHORITY HAD ACCEPTED THE EXPLANATION OFFERED BY THE ASSESSEE AND I MPOSED PENALTY ONLY FROM 01.04.2010 THOUGH REGULAR PRINCIPAL HAD J OINED THE COLLEGE ON 25.01.2010. THE TRIBUNAL DISMISSED THE APPEAL OF ASSESSEE AS NO EXPLANATION WAS FURNISHED FOR NON-FURNISHING TDS STATE MENTS IN TIME. THE HONBLE HIGH COURT THUS IN THIS REGARD OBSERVED T HAT THE REQUIREMENT OF FILING E-TDS STATEMENTS IN TIME COULD NOT BE OVERLOOKED. IN SUCH CIRCUMSTANCES THE HONBLE HIGH COURT HELD THA T IT CANNOT BE URGED BY THE COUNSEL FOR THE ASSESSEE THAT NO PENALTY CO ULD HAVE BEEN IMPOSED FOR NON-FILING E-TDS RETURNS IN TIME SINCE IT HAD NOT RESULTED IN ANY LOSS TO THE REVENUE. THE HONBLE HIGH COURT FURT HER TOOK NOTE OF THE FACT THAT BEFORE THE ASSESSING OFFICER NO EXPLANAT ION WAS OFFERED. HOWEVER AN EXPLANATION WAS OFFERED BEFORE THE APPE LLATE AUTHORITY WHICH WAS TAKEN INTO CONSIDERATION AND THE PENALTY AMOUNT WAS SUITABLY REDUCED AS THE CASE OF APPELLANT THAT REGULAR PRINC IPAL ASSUMED CHARGE ON 25.01.2010 WAS ACCEPTED AND THE PENALTY WAS IMP OSED AFTER THAT DATE. THE APPEAL OF THE ASSESSEE IN THIS REGARD WAS THUS DISMISSE D. 9 ITA NOS.1728 AND 1730/PN/2015 26. APPLYING THE SAID RATIO LAID DOWN BY THE HONBLE ALLAHABAD HIGH COURT IN RAJA HARPAL SINGH INTER COLLEGE VS. PRL. CI T (SUPRA) THERE IS NO MERIT IN THE PLEA OF THE LEARNED DEPARTMENTAL REPRE SENTATIVE FOR THE REVENUE THAT THE HONBLE HIGH COURT HAS LAID DOWN TH E PROPOSITION THAT IN EVERY CASE OF DEFAULT IN FILING THE E-TDS STATEMEN TS IN TIME PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE. THE HONBLE HIGH COURT IN AN APPEAL FILED BY THE ASSESSEE DISMISSED THE PLEA OF A SSESSEE THAT NO PENALTY IS LEVIABLE BUT HAS UPHELD THE ORDERS OF AUTHO RITIES BELOW WHEREIN THE CIT(A) HAD RESTRICTED THE LEVY OF PENALT Y FROM THE DATE OF 1 ST APRIL 2010 IN RESPECT OF E-TDS STATEMENTS TO BE FILE D FOR ASSESSMENT YEARS 2008-09 TO 2012-13 SINCE THE ASSESSEE HAD EXPLAINE D THAT REGULAR PRINCIPAL HAD ASSUMED CHARGE ON 25.01.2010. IN OTHER WORDS THE HONBLE HIGH COURT HAS ACCEPTED THE EXPLANATION OFFE RED BY THE ASSESSEE REGARDING REASONABLENESS OF CAUSE OF DELAY IN FUR NISHING E-TDS RETURNS LATE PARTIALLY. ADMITTEDLY THE DEFAULT IN FILING THE SAID E-TDS RETURNS HAVE NOT BEEN ACCEPTED IN FULL BUT TAKING IN TO CONSIDERATION THE REASONABLENESS OF EXPLANATION THE PENALTY CHARGEABLE UNDER SECTION 272A(2)(K) OF THE ACT HAS BEEN RESTRICTED I.E. SUITABL Y REDUCED IN THE CASE OF APPELLANT AS HELD BY THE HONBLE HIGH COURT. 27. ANOTHER RELIANCE PLACED UPON BY THE LEARNED DEP ARTMENTAL REPRESENTATIVE FOR THE REVENUE IS ON THE RATIO LAID D OWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN CENTRAL SCIENTIFIC INSTRUMENTS ORGANIZATION VS. JCIT (TDS) (SUPRA). IN THE FACTS OF THE SAID CASE THE ASSESSEE HAD FILED TDS RETURNS IN FORM NO.26Q BELATEDLY AFTER EXPIRY OF 10 YEARS FROM PRESCRIBED TIME LIMIT AND THE ASSESSEE HAD SUBMITTED THAT HE WAS UNAWARE OF PROVISIONS OF SECTION 200(3) OF THE ACT. THE ASSESSEE HAD DEPOSITED THE TAX TO THE CENTRAL GOVERNMENT AT RELEVANT TIME HOWEVER THE ASSESSEE FAILED TO FURNISH TDS RETURN S. THE DELAY IN FILING THE RETURNS IN PRESCRIBED FORM FOR ALL FOUR QU ARTERS WAS 6463 DAYS IN ASSESSMENT YEAR 2009-10 AND IN ASSESSMENT YEAR 2010-11 F OR ALL FOUR QUARTER WAS 4966 DAYS AND IN ASSESSMENT YEAR 2011-12 TH E DELAY WAS 3474 DAYS. IN VIEW OF THE FACTUAL ASPECTS OF THE CASE WHERE THE DELAY IS SO HUGE AND IN THE ABSENCE OF ANY EXPLANATION OF THE ASSESSEE WE FIND NO MERIT IN THE RELIANCE PLACED UPON ON SUCH DECISION BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 28. ON THE OTHER HAND VARIOUS BENCHES OF TRIBUNAL HA VE TIME AND AGAIN HELD THAT WHERE THERE WAS CASE OF REASONABLENESS THERE WAS NO MERIT IN LEVYING THE PENALTY UNDER SECTION 272A(2)(K ) OF THE ACT. THUS IN ORDER TO ADJUDICATE THE ISSUE BEFORE US WE ACCEPT THE CASE OF REASONABLE CAUSE AS RELEVANT TO SECTION 273B OF THE ACT PUT UP BY THE ASSESSEE IN THE RESPECTIVE CASES IN THE APPEALS BEFORE US W HICH ADMITTEDLY RELATE TO DIFFERENT QUARTERS OF ASSESSMENT Y EAR 2011-12. WHERE FOR THE FIRST TIME THERE WAS REQUIREMENT OF E- TDS FURNISHING OF TDS STATEMENT AND SINCE THERE WERE CERTAIN COMPLICATI ONS IN E-FILING OF TDS RETURNS BECAUSE OF SYSTEM FAILURE WHICH ADMITTEDLY WAS AMENDED 18 TIMES BY THE DEPARTMENT THE DELAY IN FURNISHING T HE SAID RETURNS LATE COULD NOT BE ATTRIBUTED TO THE ASSESSEE. THE ONUS WAS UPON THE AUTHORITIES TO PROVIDE PLATFORM FOR EASY COMPLIANCE T O NEWLY INTRODUCED PROVISIONS OF THE ACT. WHERE SUCH FACILITI ES COULD NOT BE PROVIDED BY THE AUTHORITIES AND THE TECHNICAL SUPPORT NOT BEING AVAILABLE TO SMALL ASSESSEES WHO ARE IN APPEAL BEFORE U S THEN THE DELAY IN FURNISHING THE E-TDS RETURNS LATE SHOULD BE LIBERAL LY CONSTRUED. 10 ITA NOS.1728 AND 1730/PN/2015 HENCE THERE WAS PRACTICAL DIFFICULTY ON THE PART OF ASSESSEE TO COMPLY WITH NEWLY INTRODUCED REQUIREMENT OF E-TDS FILING O F TDS STATEMENTS BEING TECHNICAL DELAY AND NOT VENIAL IN NATURE MER ITS TO BE CONSIDERED AS REASONABLE CAUSE FOR NON LEVY OF PENALTY AS PER THE REQUIREMENTS OF SECTION 273B OF THE ACT. WE HOLD SO. IN THIS BUNCH O F APPEALS THERE ARE CASES WHERE THE ASSESSEE HAS DEFAULTED IN NOT DEPOSITING T AX DEDUCTED AT SOURCE IN TIME IN SUCH CASES THE RETURNS WERE DELA YED BECAUSE OF DEFAULT ON BEHALF OF THE DEDUCTOR. IN SUCH CASES PEN ALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE. HOWEVER THE SAME IS TO BE RESTRICTED FROM THE DATE OF PAYMENT OF TDS TO THE DATE OF FILI NG E-TDS STATEMENTS SINCE E-TDS STATEMENTS CANNOT BE FILED WITHOUT PAYMEN T OF TDS TO THE CREDIT OF CENTRAL GOVERNMENT. SIMILAR RATIO HAS BEE N LAID DOWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN M/S. ASHIRWAD COMPLEX VS. JCIT (TDS) (SUPRA). ACCORDINGLY WE HOLD SO. 29. ANOTHER ISSUE RAISED IN SOME OF THE APPEALS IS THAT W HERE ALL QUARTERLY RETURNS RELATING TO ASSESSMENT YEAR 2011-12 WE RE FILED ON ONE DATE I.E. THERE WAS DEFAULT IN FURNISHING THE RET URNS FOR EACH OF THE QUARTERS LATE THE CASE OF THE ASSESSEE WAS THAT BECAUSE OF OVERLAPPING DEFAULT PENALTY AT BEST SHOULD BE RESTRICTED TO QUAR TER NO.1 AND NO PENALTY SHOULD BE LEVIED FOR THE SUBSEQUENT QUARTERS. WE FIND MERIT IN THE ABOVE PLEA OF THE ASSESSEE AND ACCORDINGLY WE DIRE CT THE ASSESSING OFFICER TO RESTRICT THE PENALTY LEVIABLE TO FIRST QUA RTER WHICH IS IN DEFAULT AND FOR THE OVERLAPPING DEFAULT NO PENALTY IS TO BE LEVIED UNDER SECTION 272A(2)(K) OF THE ACT. WE DIRECT THE ASSESSING OFFICE R TO VERIFY THE CLAIM OF ASSESSEE IN THIS REGARD AND WORK OUT THE PENAL TY ACCORDINGLY. 30. THE ISSUE ARISING IN OTHER APPEALS BEFORE US IS IDENT ICAL AND FOLLOWING OUR DIRECTIONS IN THE PARAS HEREINABOVE TH E ASSESSING OFFICER IN THE CASE OF INDIVIDUAL ASSESSEE HAS TO VERIFY THE CLAI M OF ASSESSEE AND WORK OUT PENALTY IF ANY LEVIABLE ACCORDINGLY AFTE R AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. SINCE THE FACTS OF THE IMPUGNED APPEAL ARE IDENTICAL TO THE FACTS OF THE CASE DECIDED BY THE TRIBUNAL THEREFORE FOLLOWIN G THE REASONINGS GIVEN THEREIN WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO FOLLOW THE ORDER OF THE TRIBUNAL AND D ECIDE THE ISSUE REGARDING LEVY OF PENALTY U/S.272A(2)(K) AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ACCOR DINGLY ALLOWED FOR STATISTICAL PURPOSES. 11 ITA NOS.1728 AND 1730/PN/2015 ITA NO.1730/PN/2015 : 6. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. THAT THE ORDER PASSED BY CIT(A) AURANGABAD VIDE ORDER DATED 01-10-2015 IN APPEAL NO.573/2013-14 IS ILLEGAL ARBI TRARY UNCALLED FOR AND WITHOUT ANY BASIS AND HE IS NOT JUSTIFIED IN DISMISSIN G THE APPEAL. 2. THAT THE PENALTY IMPOSED BY THE JT.CIT (TDS) RAN GE NASHIK U/S.272A(2)(K) OF THE I.T. ACT 1961 VIDE HIS ORDER D ATED 29-04-2013 AMOUNTING TO RS.27 120/- BEING ILLEGAL ARBITRARY U NCALLED FOR AND AGAINST THE FACTS ON RECORD AND THE LD.CIT(A) SHOULD H AVE QUASHED THE SAME. 3. THAT THE STATEMENT OF FACTS AND GROUNDS OF APPEAL BEFORE THE CIT(A) MAY KINDLY BE CONSIDERING AS A PART OF THIS GRO UNDS OF APPEAL. 4. THE DEFAULT IS NOT DELIBERATE OR INTENTIONAL; THE RE IS NO WILLFUL NEGLECT BUT LACK OF KNOWLEDGE OF LAW AND SUBMISSION O F TDS RETURN THROUGH ELECTRONIC SYSTEM. 5. IT IS SETTLED LAW THAT AN ORDER IMPOSING PENALTY FO R FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS RESULT OF A QUASI C RIMINAL PROCEEDING. PENALTY WILL NOT BE LEVIED MERELY BECAUSE IT IS LAWFU L TO DO SO. 6. WE HAVE RELIED ON THE DECISION OF THE HONBLE MAD RAS HIGH COURT IN THE CASE OF CIT VS. K.P.V.S. MOHAMMAD ROWTHER & CO . 232 ITR 176 (MAD.) HELD THAT IGNORANCE OF LAW CAN BE A REASONABL E CAUSE FOR THE FAILURE AND DELETION OF PENALTY WAS JUSTIFIED. THIS D ECISION HAVE CONSIDERED BY APPELLATE TRIBUNAL AHMEDABAD BENCH B IN CASE OF ACIT TDS AHMEDABAD VS. LOK PRAKASHAN LTD. AHMEDABAD ITA NO.2815/AHD/2009 (COPY ENCLOSED). CONSIDERING ABOVE GROUNDS WE REQUEST TO THE HONBLE AP PELLATE TRIBUNAL PLEASE CANCEL THE PENALTY LEVIED U/S.272A(2) (K) OF THE I.T. ACT 1961 BY JT. CIT (TDS) RANGE NASHIK. 7. AFTER HEARING BOTH THE SIDES WE FIND THE GROUNDS RAISED BY THE ASSESSEE ARE IDENTICAL TO THE GROUNDS RAISED IN ITA NO.1728/PN/2015. WE HAVE ALREADY DECIDED THE ISSUE AND R ESTORED THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN THE CASE OF NAV. MAHARASHTRA VIDYALAYA (SUPRA). FOLLOWING THE SAME REASONI NGS WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION T O ADJUDICATE THE ISSUE IN THE LIGHT OF THE DECISION OF THE TRIBUNAL CITED (S UPRA). 12 ITA NOS.1728 AND 1730/PN/2015 THE AO SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE AND DECIDE THE ISSUE AS PER FACT AND LAW. WE HOLD AND DIR ECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ACCOR DINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT BOTH THE APPEALS FILED BY THE RESPECT IVE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07-10-2016. SD/- SD/- (VIKAS AWASTHY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 07 TH OCTOBER 2016. & '#)! *!/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. THE CIT(A) - 1 AURANGABAD THE CIT-1 AURANGABAD 5. ! $$% % / DR ITAT B PUNE; 6 . ( / GUARD FILE. / BY ORDER // TRUE COPY // // ! $ //TRUE *+ $ % / SR. PRIVATE SECRETARY % / ITAT PUNE