TMI Blog2011 (3) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26Q Q IV 63843 15-06-06 14-9-07 456 45600 Total 2505 2,22,252 2.1. Similarly, in assessment year 2007-08 also, there were similar delays in filing of the TDS returns as mentioned in the table below: Type of Return Periodicity Tax deducted Due date Date of filing Delay by days Penalty (In Rs.) 26Q Q I 45810 15-7-06 14-09-06 426 42600 26Q Q II 47906 15-10-06 14-09-06 334 33400 26Q Q III 53930 15-1-07 14-09-07 242 24200 26Q Q IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety (287 ITR 155) and the decision of Mumbai Bench of Tribunal in the case of Crest Communication Ltd. (11 SOT 47). The CIT(A) was, however, not satisfied. It was observed by him that the delay was admitted. The assessee had not only failed to pay the taxes but also delayed the filing of the returns. Therefore, the explanation of the assessee based on financial crisis could not be accepted. The CIT(A) accordingly confirmed the penalty levied for both the years, aggrieved by which the assessee is in appeal before the Tribunal for both the years. 4. Before us, the ld. A.R. for the assessee submitted that penalty had been imposed u/s. 272A(2)(c)(k). It was pointed out that clause (c) of section 272A(2) related to return/statement under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount and also filed TDS returns. It was, therefore, requested that penalty should not be levied. He placed reliance on the following decisions in support of this plea: (1) 106 ITD 558 (Mum.) in the case of Crest Communication Ltd. v. Addl. DIT. (2) 11 TTJ 386 (Bom.) in the case of 3 rd ITO v. Bombay Cable Co. (P.) Ltd. and (3) 9 TTJ 442 (Madras) in the case of R. Karuppaswamy v. 2 nd ITO. 4.1. The Learned DR on the other hand supported the orders of authorities below and placed reliance on the findings given in these orders. 5. We have perused the records and considered the rival contentions carefully. The dispute is regarding levy of penalty under section 272A(2)(c)(k). The penalty has been levied for not submitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such statement for such period as may be prescribed and deliver or caused to be delivered to the prescribed income tax authority or the person authorized by such authority such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed. 6. Thus under the provisions of section 200(3) aforesaid r.w.r. 31A a quarterly statement of TDS in Form No. 26Q is required to be filed by the assessee by 15th July, 15th October, 15th January and 15th June (last quarter of the year). 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 penalty has therefore been levied @ Rs.100 per day of default is starting f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions for ensuring compliance. 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. The assessee is also liable to pay interest for the period of default till the payment of tax under section 201(1A). 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. The assessee has also explained the reasons for not paying the tax to the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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