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2020 (10) TMI 647 - AT - Income TaxPenalty u/s 272A(2)(k) - delay in furnishing quarterly returns/statements - penalty restricted for the period from the date of payment of TDS where the tax was paid late up to the date of filing of TDS statement, since before the payment of TDS, e-TDS return could not be furnished - HELD THAT:- In the instant case, assessee was in acute shortage of money, as the real estate business was in recession and it had hit the cash flow of the assessee. Assessee incurred huge loss from financial year 2008-09 onwards. For the assessment year 2008-09, assessee had incurred a loss of ₹ 36.21 crores and ₹ 363.93 crores for the financial year 2009-10. These losses continued to pile up for the subsequent financial years also. Due to this assessee company could not pay TDS on time. The e-TDS statement u/s 200(3) of the Act can only be filed after paying the taxes to the Central Government. Quarterly return of the TDS requires filling of date relating to payment of taxes. Therefore, such returns could be filed only after paying the tax to the Central Government account - Default in non-paying the taxes to the Central Government account in time or for non-deducting the tax at source, there are other provisions for ensuring compliance. In case the assessee fails to deduct tax at source or after deducting fails to pay the same to the Central Government account, the assessee is deemed to be in default u/s 201(1). Assessee is also liable to pay interest for the period of default till the payment of tax u/s 201(1A) of the Act. The assessee is also liable for penalty u/s 271C of the Act and prosecution u/s 276B - Therefore, the period 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 was already explained on the ground that the assessee could not pay the taxes for which separate penal provisions exist. We direct the A.O. to levy penalty u/s 272(2)(k) of the Act from the date of payment of TDS up to the date of filing of e-TDS statements, since e-TDS statement cannot be filed without payment of TDS to the credit of the Central Government account.
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