TMI Blog2004 (6) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the said ITO, the Jt. CIT issued show-cause notice dt.10th Dec., 1999, for late issue of TDS certificates. In all 35 TDS certificates have been issued late according to the Jt. CIT and the accumulated delay involved is 4,992 days. The penalty order indicates that the details of delay are annexed as per Annex. A . Date of issue of certificates was not mentioned in the TDS certificates filed along with Form No. 26C and, therefore, Jt. CIT proceeded on the basis that the date of filing of TDS return in Form No. 26C is the date of issue of TDS certificates for the purpose of calculating delay in each of the TDS certificates. In response to show-cause notices, the assessee explained that TDS certificates were issued to the payees within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TDS certificates were issued in time and further that no reasonable cause for late issue of TDS certificates has been shown. 4. The assessee carried the matter in appeal before the CIT(A) who upheld the imposition of penalty with the following observations: "The submissions of the appellant are concerned (sic-considered). The Jt. CIT has taken the date of issue of the certificate as22nd July, 1996which is the date on which the TDS return was filed. The appellant on the other hand has submitted that the certificates were issued in time except for a minor delay in some cases. The total delay as per the appellant is 162 days. The appellant has not been able to furnish any evidence with regard to the dates of issue of the TDS certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on consideration of all relevant circumstances. Even if, a penalty is prescribed under the statute, the prescribed authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provision of Act or where the breach flows from a bona fide belief or conduct of the assessee. In support of our view, reliance is placed on the decision of Gujarat High Court in CIT vs. Harsiddh Construction (P) Ltd. (2000) 159 CTR (Guj) 364 : (2000) 244 ITR 417 (Guj) wherein the decision of the Tribunal cancelling similar penalty under s. 272A(2)(g) has been approved. The High Court placed reliance on the observations of Supreme Court in the case of Hindustan Steel Ltd. vs. State of Oriss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time enclosing therewith TDS certificates issued by the assessee to the payees. Now, merely because these TDS certificates are undated would not make the assessee liable to penalty for default under s. 272A(2)(g). The contention of the assessee that TDS certificates in Form No. 16A have been duly issued to the payees in time and credit for the TDS paid has been duly allowed by the Revenue authorities in the cases of the payees cannot be brushed aside by the Revenue while levying the impugned penalty. The assessee pointed out during the penalty proceedings that since the matter is old, the payees are not co-operating with him and if any verification from the income-tax records regarding the issue of TDS certificates is to be made, the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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