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TMI Blog2018 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... avor of assessee. - MA No. 143-144/Coch/2016 ( Arising out of ITA No. 58-59/Coch/2016 ) - - - Dated:- 25-5-2018 - Shri Chandra Poojari, AM And Shri George George K, JM Applicant by : Sri. A.Dhanaraj, Sr.DR Respondent by : Sri. Rejinar K.P., Advocate ORDER Per George George K, JM 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 impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the assessee on misrepresented facts as submitted by the assessee. The assessee in his arguments has stated that the Department had not passed an order u/s 201(1) as in para 11 of Page 6 contained in ITA.No.59/Coch/2016 dated 20.05.2016 which is reproduced as under: it was also submitted that the department had not passed an order u/s.201 r.w.s.221 of the Act holding the assessee in default. Had there been no good and sufficient reasons for delayed payment of TDS, the revenue would have treated the assessee company as assessee in default and levied penalty u/s.221 of the Act. In fact an order u/s 201(1) of the Income tax Act,1961 was passed on 14.01.2010 by DCIT(TDS), for the Financial Year-2009-10 (AY-2010-11) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page No.7 of ITAT's order dated 20.05.2016 -recalling the ITAT Bangalore Bench's decision :- 24. on the issue of not passing order u/s.201(l} before initiation of proceedings u/s. 271C,we are inclined to agree with the assessee's contention and rely on the decision of the Tribunal Delhi 'c' Bench in Maruberi Corpn.(Liaison Office) Vs. Joint CIT (2002) 83 ITD 577 (Del.) and the decision of Tribunal Bangalore Bench in ITA Nos.137 to 140/Bang/2002. On this ground also, the order of penalty stands vacated. Whereas in this case, on the contrary, the department has issued 201(1) order on 14.01.2010 as such the assessee has mis-lead the Hon'ble ITAT by stating that the Department has not issued order u/s.201( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances for delay in remittance because assessee cannot divert tax recovered for the Government towards working capital or any other purpose. So much so, in our view, defence available and Section 2738 does not cover failure in payment of recovered tax. The Hon'ble High Court of Kerala in the case of Classic Concept Home India(P) Ltd. Vs. Commissioner of Income tax (2015) 6 TMI 399 also has upheld the levy of penalty u/s.271C of the Income Tax Act. The Hon'ble High Court has observed that: as we have already noticed, it is the admitted case of the parties that the tax was deducted at source and the same was remitted belatedly though with interest. In such a case, the provisions of Sec.271C of the Income Tax Act are fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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