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2015 (5) TMI 758 - ITAT KOLKATA

2015 (5) TMI 758 - ITAT KOLKATA - TMI - Penalty u/s 272A(2)(K) - delay filing the TDS return - Held that:- In the present case of the assessee, either Government bodies or aided by Govt., are public office and since the tax deduction and payment are made by treasury and there is undisputedly no default. There arises, no reason for non-filing of TDS return with an intentional act or willful act to attract a quasi-criminal, imposition of penalty. The assessee has relied on the decisions of CIT Vs. .....

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. There is reasonable cause for delay in filing ETDS return U/s 273B. Considering the facts and circumstances of the cases in its entirety, we are of the considered view that the penalty so levied in the case of the assessee is not all justified. We, therefore, cancel the penalty levied u/s.272A(2)(k) for the assessee for the respective AYs. - Decided in favour of assessee. - ITA No.339 & 340/CTK/2014 - Dated:- 4-3-2015 - P K Babnsal And D T Garasia JJ. For the Appellant : Shri P C Sethi, AR For .....

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y the learned Joint Commissioner of Income-tax (TDS), Bhubaneswar which is per se illegal, arbitrary, without jurisdiction, contrary to the provisions of the Act and has been made in gross violation to the principles of natural justice. 2. That, the learned CIT (A) has committed serious error in not quashing the penalty order as the order passed by the learned Joint Commissioner of income-tax (TDS), Bhubaneswar u/s 272A(2)(K) of the Income-tax Act, 1961 (hereinafter referred as 'the Act' .....

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UCO Bank vrs. Addl. CIT and for which said order of Joint commissioner of Income-tax (TDS) is liable to be quashed. 5. That, the learned CIT (A) has committed serious error in not quashing the penalty after admitting that there will be a delay in filing of form No. 24Q/26Q due to e-TDS statement which is unknown to the appellant and for which the penalty order imposed by the learned Joint Commissioner of Income-tax (TDS) and confirmed by the learned CIT (A) is liable to be quashed. 6. That, the .....

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1961 (hereinafter referred to as the 'Act', for short). The total delay calculated by JCIT for all eight quarterly statements comes to 6721 days in A.Y. 2010-11 & in A.Y. 2011-12 the delay of 2248 days. Therefore, the JCIT has levied the Penalty of ₹ 95,915/- for the A.Y. 2010-11 and ₹ 96,902/- 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 1 st 15.7.2009 31.5.2012 1050 0 0 2 .....

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5.1.2011 -do- 501 33,804 33,804 24Q 4th 15.5.2011 -do- 381 2,28,023 38,100 26Q 1st 15.7.2010 29.8.2010 45 61,315 4,500 26Q 2nd 15.10.2010 27.11.2010 43 44,504 4,300 26O 3rd 15.1.2011 15.1.2011 0 6,916 0 26Q 4th 30.5.2011 30.5.2011 0 1,45,710 0 Grand Total 2248 5,36,470 96,902 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 us that the issue stands covered by the decision of .....

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R relied upon the order of the Ld. CIT(A). 7. We have heard the contentions of the rival parties at length. 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 to be uploaded on the basis of tax deducted at source alread .....

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was in favour of the assessee on the basic connotation that the deductee would only be given credit to such deduction of tax at source once the e-filing by the 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 clear .....

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d by the Department or the NSDL being the apex Nodal Agency. The learned DR has insisted that the proviso to Rule 31-A of the I.T.Rules clearly indicate that 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 th .....

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essee was in default not being computer literate their principal officers who have been held responsible for such late filing of the quarterly statements was 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 est .....

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of e-return through the designated service provider of Income-tax Department. The assessee deductor has no technical competency to file the return by itself 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 .....

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