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2015 (9) TMI 430 - ITAT CUTTACK

2015 (9) TMI 430 - ITAT CUTTACK - TMI - Penalty imposed u/s. 272A(2)(k) - e-TDS statements filed much later than the due dates - Held that:- 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 Gover .....

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t in payment of tax. Once the delay in payment of tax is explained satisfactorily, penalty u/s. 272A(2)(k) of the Act cannot be levied for the period till payment of tax. Hence, we modify the order of the Assessing Officer. The Assessing Officer is directed to levy the penalty u/s. 272A(2)(k) of the Act only for the delay in payment of tax by the assessee. The order of Ld. CIT(A) is modified accordingly. - Decided partly in favour of assessee. - ITA Nos. 236 to 239/CTK/2014, ITA Nos. 267, 268 & .....

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lidated order. 2. For the sake of convenience, facts are taken from I. T. A.No. 236/CTK/2014. The following grounds are raised by the assessee: 1. Because that the Ld. CIT(A-1) erred in law as well as in fact by confirming the penalty imposed u/s. 272A(2)(k) not appreciating the fact that the TDS returns are filed after the TDS is deposited. 2. Because that the Ld. CIT(A-1) erred in law as well as in fact by confirming the penalty imposed u/s. 272A(2)(k) which is unjust, arbitrary, excessive and .....

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The assessee contended that the TDS returns could not be filed in time because the TDS was not deposited in time due to non-availability of funds. The said explanation was not found reasonable by the Assessing Officer, therefore he imposed the penalty which is as under:- Form Type Quarter Due date Date of filing Delay in days Amount of TDS Involved Amount of Penalty 24Q 1st 15.7.2007 20.1.2012 1650 0 0 24Q 2nd 15.10.2007 -do- 1558 0 0 24Q 3rd 15.1.2008 -do- 1466 0 0 24Q 4th 15.6.2008 7.1.2012 13 .....

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ependent on its sister concerns for daily cash requirements. From 01/04/2008 to 31/03/2010, it was necessary to mention 95% of PAN of the deductees in case of salary and 85% in case of non-salary deductees. After deposit of TDS the company had made all possible efforts to obtain the required number of PANs from the deductees. The assessee failed to obtain the PANs as required to be filled up in the TDS returns as many of employees had left and many contractors / professionals had stopped working .....

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be deleted. 6. Learned DR relied upon the orders of the revenue authorities. 7. We have heard rival contentions of both the parties. Looking to the facts and circumstances of the case, we find that the Assessing Officer imposed the penalty u/s. 272A(2) (k) of the Act in respect of A.Ys. 2008-09, 2009-10, 2010-11 & 2011-12. Penalty has been levied for not submitting the quarterly returns for tax deducted at source within the prescribed time limit. Sec. 206 relates to collection of tax and no .....

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n 200(3) reads as under:- 200(3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this Chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax deducted to the credit of the Central Government within the prescribed time, [prepare such statements for such period as may be prescribed] and deliver or cause to be delivered to the prescribed income-tax autho .....

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s reproduced in this order. The penalty has therefore been levied @ 100/- per day of default is staring from the due date to the date of filing the quarterly return. The case of the assessee is that it had deducted the TDS at the time of crediting amounts in the books of accounts and the payment could not be made due to financial difficulties and since the payments had not been made the TDS returns could not be filed as the same required date relating to payment of TDS. Sec. 272A(2)(k) of the Ac .....

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date of paying the tax to the Central Government. 9. As regards the default in not paying the tax to the Central Government in time or for non deducting the tax at source, there are other provisions 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 def .....

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