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2011 (3) TMI 880 - AT - Income TaxPenalty u/s. 272A(2)(c) and (k) - The assessee was incurring losses and there was financial crisis and therefore due to non-availability of funds there were delays in making the payments and filing the returns - The Learned AR for the assessee has rightly pointed out that clause (c) of section 272A(2) is not applicable as the same relates to return/statement under sections 133, 206 and 206C - In this case there has been delay in both the years as indicated by the AO in the table reproduced at page 2 of this order - The quarterly returns of TDS require filling of data relating to payment of taxes and therefore such returns could be filed only after paying the tax to the Central Government Regarding default in not paying tax - In case the assessee fails to deduct the tax at source or after deducting fails to pay the same to the Central Government the assessee is deemed to be in default under section 201(1) and is liable for penalty - Therefore in our view the period for levying the penalty has to be counted from the date of payment of tax because the delay in filing the return till the date of payment of tax is already explained on the ground that the assessee could not pay the taxes for which separate penal provisions exist - Once the delay in payment of tax is explained satisfactorily, penalty under section 272A(2)(k) for the period till payment of taxes, cannot be levied in our opinion - Appeal is allowed partly
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