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2015 (5) TMI 753 - ITAT CUTTACK

2015 (5) TMI 753 - ITAT CUTTACK - TMI - Penalty U/s.272A(2)(k) - whether appellant has not deliberately and consciously deposited the TDS amount in time? - Held that:- We do find that the penalty so levied by the AO and confirmed by the learned CIT(A) appears to be leaning more on holding assessee in default for such penalty as a mechanical/ automatic levy insofar as it is the Department itself, who has insisted the e-filing of such returns as late as making the assessee literate about the data .....

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at it is only a question of delayed filing of the e-TDS quarterly return, which was entrusted to an authorized service provider and the delay has occurred unintentionally. The assessee deductor is law compliant and the delay occurred only due to the reason that the assessee deductor is dependent on information of TDS and its deposit from the sub treasury of the Government and filing of e-return through the designated service provider of Income-tax Department. The assessee deductor has no technic .....

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e, the default being beyond the control of the assessee deductor. It is at best a technical or venial breach of the provisions of the act or where the breach flows from a bonafide belief that the assessee is not liable to act in the manner prescribed by the statute. The penalty u/s 272 (A)(2) cannot be levied in a routine manner. Law is well settled that a bonafide breach cannot lead to a penalty u/s. 272(A) [Hindustan Steel Ltd. Vs. State of Orissa (1969 (8) TMI 31 - SUPREME Court)]. - Decided .....

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In I.T.A.No. 261/CTK/2014, the following grounds are raised:- 01. For that the order of the Forum below is illegal, arbitrary, unjust and excessive in the facts and circumstances of the case. 02. For that the Learned Addl. CIT (TDS), Bhubaneswar has not afforded reasonable opportunity of hearing to the appellant but passed the order hastily on 19/03/2014 imposing penalty at ₹ 80,960/- for the Financial Year:-2009-10 relevant to the Assessment Year:-2009-10, which is not only arbitrary but .....

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been considered and the delay should have been condoned, but imposition of penalty without application of mind is illegal and liable to be cancelled. 04. For that the calculation of penalty U/S.272A (2)(k) has not been made properly, hence the order passed is liable to be quashed. In I.T.A.No.262/CTK/2014, the following grounds have been raised:- 01. For that the order of the Forum below is illegal, arbitrary, unjust and excessive in the facts and circumstances of the case. 02. For that the Lea .....

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e appellant has not deliberately and consciously deposited the TDS amount in time, hence the order passed imposing penalty U/s.272A(2)(k) of the Act is liable to be quashed. 04. For that there being reasonable cause for delay in filing the returns / statements etc., the same should have been considered and the delay should have been condoned, but imposition of penalty without application of mind is illegal and liable to be cancelled. 04. For that the calculation of penalty U/S.272A (2)(k) has no .....

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l delay calculated by JCIT for all either quarterly statements comes to 3888 days in A.Y. 2010-11 & in A.Y. 2011-12 the delay of 2995 days. Therefore, the JCIT has levied the Penalty of ₹ 80,960/- for the A.Y. 2010-11 and ₹ 60,166/- for the A.Y. 2011-12 by following tables:- Form Type Quarter Due date Date of filing Delay in days Amount of TDS Involved Amount of Penalty 24Q 1st 15.7.2009 31.7.2012 1112 12,797 12,977 24Q 2nd 15.10.2009 -do- 1020 1,933 1,933 24Q 3rd 15.1.2010 -do- .....

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0 26O 3rd 15.1.2011 -do- 202 94,889 20,200 26Q 4th 15.6.2011 -do- 67 2,19,608 6,700 Grand Total 2995 4,91,596 60,166 4. The matter was carried to the Ld. CIT(A) and the Ld. CIT(A) has partly allowed the appeals. Therefore, assessee is in appeal before u/s. 5. Learned AR submitted before u/s. that the issue stands covered by the decision of ITAT, Cuttack Bench in the case of Garrision Engineer (I) R & D Vs. ACIT (TDS) in I.T.A.No. 69/CTK/2013, therefore the penalty provisions cannot precede t .....

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d confirmed by the learned CIT(A) appears to be leaning more on holding assessee in default for such penalty as a mechanical/ automatic levy insofar as it is the Department itself, who has insisted the e-filing of such returns as late as making the assessee literate about the data to be uploaded on the basis of tax deducted at source already given credit to by the I.T. Department on the basis of TDS certificates furnished by the assessee namely the deductee. The bonafide is established beyond do .....

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he deductor was on-time not requiring penalty @Rs.100 per day as have been put forth by the Assessing Officer and confirmed by the learned CIT(A) indicating that the provisions of such default is liberal to the extent that the amount so deducted and credited to the Government account was not to be more than the penalty so levied. This clearly indicates that the case-laws as submitted by the learned Counsel of the assessee before us indicates that there is no less to the Revenue for attracting or .....

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the penalty was ripe for levy not because the insistence of the Department on assessee to e-file it on a particular date for calculating number of days the default continues. We are unable to consider the proposition of the learned DR insofar as the Department itself was handicapped as the bonafide of the assessee has been established in the negative way as they would have filed the hard-copy of the quarterly statements which the Department refused to acknowledge. Therefore, the computer generat .....

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an administrative glitch. It was not in the interest of the Government employee to hold back the information which they have already gathered insofar as they are now being governed by the computer which software has its own filters for accepting the quarterly statements for which the assessee in default have not maintained any record to establish that efforts were made by them to reduce the time delay in filing such statements. Concluding, we observe that it is only a question of delayed filing .....

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without external aid. The assessee is also not competent to do so by itself as per rule 37B and "Filing of Return of Tax deducted at source" scheme 2003, which requires the submission of quarterly statement through NSDL or other approved agencies i.e third party, not under the control of the assessees. There is neither any willful negligence nor any malafide on the part of the assessee in the matter of compliance and the delay was due to reasonable cause, the default being beyond the c .....

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