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The fact that the Assessing Officer has not passed any order under section 201(1) of the Act treating the assessee as an assessee in default has not been disputed by the Revenue. In the decisions relied upon by the learned Authorised Representative, it has been categorically held that without declaring the assessee as assessee in default under section 201(1) of the Act, no penalty under section 271C of the Act can be imposed. Respectfully following the ratio laid down in the decisions cited supra, we delete the penalty imposed under section 271C of the Act. Ground raised by the assessee is allowed.

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Sec. 272A(2)(k) of Income Tax Act, 1961— Penalty — The assessee filed appeals against two separate orders passed by CIT (Appeals), confirming penalty  imposed under section 272A(2)(k) and under section 271C of the Income Tax Act, 1961. While assessee processing the TDS statement filed in Form no.26Q for different quarters of financial year 2009–10, the Assessing Officer found that all such statements have been filed belatedly. Thus, the Assessing Officer issued a show cause notice requiring the assessee to explain why penalty should not be imposed under section 272A(2)(k) of the Act for delayed filing of TDS statement. As alleged by the Assessing Officer, the assessee did not comply to the notice issued. Proceeding further, the Assessing Officer observed that there are substantial delay of 394 to 729 days in filing TDS statement, which makes the assessee amenable to imposition of penalty 272A(2)(k) of the Act. Accordingly, he proceeded to impose penalty. Assessee challenged the imposition of penalty under section 272A(2)(k) of the Act, the assessee filed appeals

 before the first appellate authority.Commissioner (Appeals), however, confirmed the penalty imposed by the Assessing Officer.Assessee contended that without declaring the assessee as an assessee in default under section 201(1) of the Act, the Assessing Officer cannot impose penalty under section 271C of the Act. 
 The Tribunal has deleted penalty imposed by holding that there is no malafide intention of the assessee to filed the TDS statement belatedly.
            In the decisions relied upon by the learned Authorised Representative, it has been categorically held that without declaring the assessee as assessee in default under section 201(1) of the Act, no penalty under section 271C of the Act can be imposed. Respectfully following the ratio laid down in the decisions cited supra, we delete the penalty imposed under section 271C of the Act. Ground raised by the assessee is allowed. --- SHRI RAVIRAJ RELAMPADDU vs. Asstt. CIT.[2020] 23 ITCD Online 18 (MUM)