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2015 (12) TMI 689 - ITAT MUMBAI

2015 (12) TMI 689 - ITAT MUMBAI - TMI - Penalty imposed under section 272A(2)(k) - delay in filing TDS statements - Held that:- Undisputedly, it is a fact on record that there is a delay in filing TDS statements in respect of all the four quarters as far as Form no.24Q is concerned and as far as statements in Form no.26Q is concerned, there is a delay in filing the TDS statement in respect of quarter 2, 3 and 4. On a perusal of the details of filing of TDS statement, it is seen that the delay is .....

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and salary was paid to the family members of the company, hence, there is no willful intention to delay or deprive any deductee of the TDS credit. However, before the first appellate authority, the assessee has taken a completely different stand by stating that due to oversight of the staff, TDS statement could not be filed. When the learned counsel was specifically asked by the Bench why this stand taken before the first appellate authority was not taken before the Assessing Officer, he submitt .....

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ssee has taken a completely new stand before the first appellate authority which is not available before the Assessing Officer. Moreover, the plea regarding oversight by the staff is very general in nature, hence, cannot be accepted. Neither the assessee has identified the concerned employee nor furnished any affidavit of the employee admitting such fact. Further, considering the period of delay, the plea of oversight by staff is not acceptable.

Though, we accept the fact that imposi .....

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Ashwani Taneja, AM For the Appellant : Shri M P Chhajed & Shri Piyush Chhajed For the Respondent : Shri Harshad Vengurlekar ORDER Per Saktijit Dey, JM This is an appeal filed by the assessee against the order dated 17th February 2014, of learned Commissioner (Appeals)-14, Mumbai, for the assessment year 2010-11. 2. The assessee is basically aggrieved with the confirmation of penalty of ₹ 3 lakh, imposed under section 272A(2)(k) of the Income Tax Act, 1961 (for short "the Act" .....

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quarterly TDS statement for each quarter by 15th July, 15th October, 15th January and 15th June of the year. As the assessee has not filed the quarterly statement within the aforesaid prescribed date, the Assessing Officer issued a show cause notice to the assessee to explain why penalty under section 272A(2)(k) should not be imposed. In response to the show cause notice, as stated by the Assessing Officer, though the assessee admitted the default committed in filing the TDS statement but reques .....

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filing the TDS statement submitted that due to oversight of his staff, TDS statement could not be filed in time. The learned Commissioner (Appeals), however, was not convinced with the explanation of the assessee. He observed that the provisions contained under section 203 r/w rule 31A require strict compliance. Therefore, the plea of lack of staff, ignorance of TDS provisions would not constitute reasonable cause. Accordingly, he confirmed levy of penalty. 5. The learned counsel for the assess .....

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f TDS statements, assessee has remitted TDS amount to Government account along with the statutory interest in those cases where remittance was delayed. Thus, the learned Counsel for the assessee submitted when there is no loss to the Revenue for a mere technical breach, penalty should not be levied. It was further submitted that when the assessee had deposited the TDS amount to the Government account, the assessee has to be treated as a law abiding citizen and the delay in filing the TDS stateme .....

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;. Further, the learned Departmental Representative submitted what constitutes reasonable cause would depend upon the fact of each case and it would mean a reasonable cause which would constrain a person of average intelligence and ordinary precedence. He submitted that in the present case, the assessee was negligent in carrying out the statutory mandate and the plea that it was due to oversight of staff is not acceptable. For this proposition, he relied upon the following decisions:- i) HTSL Co .....

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On a perusal of the details of filing of TDS statement, it is seen that the delay is substantial ranging from almost one year to about two years. It is also relevant to note that on a specific query from the bench it was submitted by the learned Counsel that in respect of some of the quarters TDS amount was remitted to the Government account beyond the prescribed date. Thus, keeping in view the aforesaid factual decision, it is to be decided whether there is a reasonable cause for not imposing p .....

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TDS statement could not be filed. When the learned counsel was specifically asked by the Bench why this stand taken before the first appellate authority was not taken before the Assessing Officer, he submitted that due to very short time given by the Assessing Officer for submitting the reply, the assessee could not take such stand. However, we are not convinced with the aforesaid submissions of the assessee. It is relevant to note that in response to the show cause notice issued by the Assessi .....

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ed any affidavit of the employee admitting such fact. Further, considering the period of delay, the plea of oversight by staff is not acceptable. Though, we accept the fact that imposition of penalty under section 272A(2)(k) is not mandatory as the provisions of section 273B is also applicable in case of imposition of penalty under section 272A(2)(k), but, at the same time, the assessee has to show reasonable cause for the default. As far as the decision relied upon by the learned Counsel for th .....

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