2015 (1) TMI 1455 - AT - Income Tax

Levy of penalty u/s. 271C - assessee failed to remit the tax - HELD THAT - The same issue was considered in the case of US Technologies International (P) Ltd. vs. CIT 2009 (6) TMI 1016 - KERALA HIGH COURT wherein it was held that if there is failure to remit or deduct the tax in whole or any part thereof, will attract provisions of penalty under section 271C - Being so, the assessee cannot re-argue the same issue before us. The facts in this case being identical to that one considered in the case of US Technologies International (P) Ltd., 2009 (6) TMI 1016 - KERALA HIGH COURT we are inclined to hold that the assessee is liable for penalty not only in terms of provisions of Chapter XVIIB but also for non payment of tax deducted at source in time. AR made a plea before us that because of financial problem, the assessee failed to remit or deduct tax to the Government. However, there is no iota of evidence to suggest that the assessee is suffering from financial difficulty. Hence, the assessee s argument thus cannot be constituted as explanation to say that the assessee is suffering from financial difficulty unless the assessee substantiates it with evidence. Even if there is financial difficulty, it is the duty of the assessee to substantiate the financial hardship by placing necessary evidence. In the present case, there is no material to suggest the financial difficulty of the assessee. The other grievance of the assessee is that when the assessee has remitted the deducted amount with interest before the detection by the Department, hence penalty cannot be levied. This contention of the assessee cannot be considered as reasonable cause and there is delay of remittance of deposited amount to the Government and payment of interest is compensatory in nature and in this case, there was a continuous delay of 4 years and the belated depositing of deducted amount every year and the assessee is a willful defaulter. Being so, we are inclined to confirm the order of the CIT(A) on this issue. AR made a plea before us that in one assessment year, 2010-11, penalty levied was more than the tax which the assessee failed to deduct . Being so, the Assessing Officer shall recompute the penalty amount and it shall not exceed the amount of tax which the assessee failed to deduct and pay the same to Central Government. With this observation, we are inclined to confirm the order of the penalty. Appeal of assessee dismissed.

Summary

Issues:
Levy of penalty u/s. 271C of the I.T. Act for the assessment years 2009-10 to 2012-13.

Analysis:
1. The appeals were against orders levying penalty u/s. 271C of the I.T. Act for different financial years totaling Rs. 27,80,002. The Assessing Officer held the assessee liable due to delays in TDS remittance, despite explanations of financial difficulties causing delays.

2. The AR argued that TDS was remitted with interest for delays, citing cases where financial difficulties were considered reasonable cause for delay. The AR emphasized that penalty under section 271C is discretionary, not automatic, and relied on legal precedents supporting reasonable cause for delay.

3. The DR contended that interest under section 201(1A) does not absolve the assessee from penalty, highlighting cases where penalty is a civil liability irrespective of willful intent. The DR raised concerns about deductors retaining TDS amounts for business use, affecting deductees' tax credit.

4. The Tribunal noted the failure to remit deducted tax to the government, invoking section 271C provisions for penalty. The AR argued against penalty citing prior tax payment, but the Tribunal referenced a Kerala High Court ruling to uphold the penalty for non-payment of tax deducted at source.

5. The Tribunal rejected the AR's plea of financial difficulties as no evidence supported it. The AR's argument that prior remittance with interest should negate penalty was dismissed, emphasizing continuous delays as willful default.

6. In one instance, where the penalty exceeded the tax not deducted, the Tribunal directed the Assessing Officer to recalculate the penalty not to exceed the unpaid tax amount. Ultimately, all appeals were dismissed, confirming the penalty orders.

This detailed analysis covers the issues of penalty under section 271C of the I.T. Act for multiple assessment years, highlighting arguments from both sides and the Tribunal's decision based on legal provisions and precedents.