IN INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI R.C. SHARMA, AM AND SHRI SANDEEP GOSAIN, JM .I.T.A. No.45/Mum/2015 (Assessment Year: 2009-10) Maharashtra State Co-op. Addl. CIT (TDS) Marketing Federation Limited, Range-3, Mumbai-400002. Kanmoor House, Narsi Natha St., Vs. Masjid, Mumbai-400009 PAN/GIR No. AAAAT 6218 L (Appellant) : (Respondent) Appellant by : None Respondent by : Shri Uday Bhaskar Jakke : 19/07/2016 Date of Hearing : 18/10/2016 Date of Pronouncement ORDER Per R.C. SHARMA, A. M.: This is Appeal by Assessee directed against Order by Commissioner of Income Tax (Appeals)- 14, Mumbai ( CIT(A) for short) dated 14-10-2014 for assessment year (A.Y.) 2009-2010, in matter of imposition of penalty u/s 272A(2)(k) of I.T. Act,1961. 2 ITA No.45/2015 2. We have heard ld. DR and also gone through written submissions filed by assessee. 3. We have gone through orders of authorities below and found that while levying penalty u/s 272A(2)(k) ld. AO observed that assessee was required to file form No.24Q and 26Q quarterly u/s 200(3) r.w.rule31A which assessee had filed belatedly for all four quarters in respect of form 24Q and for three quarters for form 26Q. Hence penalty was levied @ Rs.100 per day for each default. It was submitted by assessee before AO that it was mandatory to fill in PAN number of deductees in these forms as per rule 31A(4)(iii); and since PAN was not available in respect of some deductees and there as wrong PAN in some cases, there was delay. circular issued by assessee to deductees to supply PAN number was also submitted. As regards, delay in respect of contractors payments, it was submitted that assessee was not aware of requirement and immediately filed same on being pointed out by audit party. 4. By observing that assessee failed to fulfill requirement of section 200(3) which was inserted with effect from 01.05.2010, AO levied penalty for delay in filing declaration. By impugned order CIT(A) confirmed action of AO. 5. We have considered contentions of DR and deliberated on judicial pronouncements referred by lower authorities in their irrespective orders, as well as written submission filed by assessee before us. In written submission it was 3 ITA No.45/2015 provided that there was no liability of assessee u/s 200(3) to file statement. liability has been provided by section 200(2A) w.e.f. 1-6-15. Hence penalty should be cancelled simply on this ground. It is further submitted that section 272A is applicable to person and assessee is not person, being govt. of India itself, within meaning of section 2(31). section does not impose any penalty on person responsible for deducting tax; but on person in general. Hence penalty is not leviable at all for want of any provision to impose penalty on govt. department. term person responsible for deducting tax has been defined in section 204. That section also provided that govt. is not person responsible for paying tax. This section was amend w.e.f. 1-7-2012 to provide that govt. department can also be defaulter. This date of amendment is after date of 26-12-11 when ld. AO had passed order levying penalty. Hence penalty was not leviable as per prevailing legal provisions. 6. We found that non-availability of PAN was reasonable cause for which evidence was also submitted before lower authorities in form of circular issued by assessee for supply of PAN vide annexure A. Hence penalty so levied for delay in filing declaration should be cancelled on this ground of reasonable cause. 7. In view of above discussion we direct AO to delete penalty so imposed u/s 272A(2)(k) of I.T. Act. 8. In result, appeal of assessee is allowed. 4 ITA No.45/2015 Order pronounced in open court on 18th October, 2016 Sd/- sd/- (SANDEEP GOSAIN) (R.C. SHARMA) Judicial Member Accountant Member Mumbai; Dated : 18.10.2016 Ps. Ashwini Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT - concerned 5. ,DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai. Maharashtra State Co-op. Marketing Federation Limited v. Addl. CIT (TDS), Range-3, Mumbai