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2018 (10) TMI 1224 - ITAT PUNEPenalty levied u/s 272A(2)(k) r.w.s. 200(3) - late filing of TDS Returns - sub-contractors not having PAN, - whether appellant was prevented from reasonable cause for not filing the Returns in time - whether appellant had paid TDS along with interest, the default remained only a technical breach and there was no malafide intention for not filing the returns within specified time? - assessee pointed out that he had not received notice of hearing from the Assessing Officer and the order had been passed without providing opportunity of hearing to the assessee Held that:- On perusal of record and the orders of authorities below, we find merit in the plea of assessee, wherein he has admitted to have filed TDS returns belatedly on the ground that he had not received PAN numbers of deductees. The assessee was a proprietor of his business and has deducted tax at source out of payments made to sub-contractors and also on account of rent and professional fees. The TDS return for the first quarter was due on 15.07.2010 and was filed on 22.02.2012. The TDS return for quarter No.2 in Form No.26Q was due to be filed on 15.10.2010 and for quarter No.3 by 15.01.2011 and for quarter No.4 by 15.05.2011, but all these TDS returns were filed on 26.02.2012. Referring to assessee's plea in view of peculiar circumstances of sub-contractors not having PAN, which were applied at a later date and hence, the delay in filing TDS returns late but the taxes were paid along with interest upto date we find merit in the plea of assessee, wherein under section 273B of the Act, if the assessee established its case of reasonable cause, which had resulted in failure of assessee to comply with the requirement of law, then penalty merits to be deleted in the hands of assessee. The facts of each case has to be seen independently and under such circumstances, reasoning of CIT(A) that the word used in section is ‘shall’ and not ‘may’ and hence, it was mandatory upon the assessee to comply with the provisions of the Act by filing the TDS return within prescribed time, cannot hold. Undoubtedly, in the said section, the word used is ‘shall’ but thereafter, the provisions of section 273B of the Act are also provided in the Statute and reading two together would show that levy of penalty can be deleted in case the assessee fulfills the conditions of reasonable cause as provided in section 273B of the Act. Similar issue had arisen before the Tribunal in bunch of appeals with lead order in Nav Maharashtra Vidyalaya Vs. Addl. CIT (TDS) Range, Pune [2017 (1) TMI 722 - ITAT PUNE] has decided the issue of levy of penalty under section 272A(2)(k) of the Act. - Decided in favour of assessee
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