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2016 (8) TMI 996 - ITAT DELHI

2016 (8) TMI 996 - ITAT DELHI - TMI - TDS liability - delay in depositing tds - Held that:- Delay in depositing the cannot be attributed to the assessee as the assessee had sufficient funds to deposit tax and he also secured ID and password to make online payment of TDS. However, the same could not be activated at the end of the bank, despite several requests by the assessee, hence the tax could not be deposited on or before 30.9.2008 as per provisions of the Act. We are satisfied that despite o .....

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jay Wadhwa, Adv For The Respondent : Shri Yogesh Kumar Sharma, Sr. DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER This is a recal led order passed by the Tribunal vide order dated 10.1.2014 in MA No. 177/Del/2012 recall ing the order of the Tribunal dated 25.4.2012 in ITA No. 3060/Del/2011 wherein the assessee s appeal had been dismissed on merits. 2. This appeal has been filed by the assessee and directed against the order of the CIT(A)-VI I, New Delhi, dated 15/04/2011 for AY 2008-09. 3. The .....

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elay in depositing the TDS occurred due to technical change in the method of depositing TDS which was beyond the control of the assessee. 4. We have heard the rival submissions and have carefully perused the relevant material on record inter alia the assessment order of the ld. CIT(A), paper book filed by the assessee alongwith written synopsis spread over 10 pages. 5. The assessee company filed its return of income for A.Y 2008- 09 on 23.10.2008 and the A.O, while framing the assessment, had di .....

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que. Consequently, the assessee applied for online banking in ICICI Bank in the third week of September and tried its best to get online banking. The ld. AR drew our attention toward the paper book of the assessee containing 17 pages and pointed out that there was sufficient bank balance with t of ₹ 20,14,379/- [paper book page 4] as per bank account statement with ICICI Bank to deposit ₹ 7,26,666/- TDS online and the bank also allotted ID Password to the assessee [paper book page 12 .....

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f the birthday of the Father of the Nation Mahatma Gandhi. The ld. Counsel for the assessee pointed out that the authorities below did not give any attention to the facts and circumstances which narrated the bonafide efforts of the assessee to deposit the amount on or before 30.9.2008 and ignored a vital point that the circumstances which could lead to only three days in depositing the TDS were beyond the control of the assessee. The ld. AR strenuously contended that the A.O as well as the ld. C .....

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ional or deliberate but it was caused due to the above stated reasons beyond the control of the assessee. The ld. AR submitted that there was a good and plausible reasonable cause in the delay of three days in depositing the TDS, therefore, it would be justified to allow benefit of the expenses in the relevant A.Y. The ld. AR also explained that the reasonable cause has been described by the jurisdictional High Court of Delhi in the case of Woodward Governors India [P] Ltd Vs. CIT [2002] 253 ITR .....

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ia 219 ITR 410 (1996] 5. ACIT v. Jindal Irrigation Systems Ltd. (Hyd) 56 ITD 164 6. ACIT v. Sri. Ramachandra 128 TTJ 408 (2010] (ITAT Chennai] 7. Jagdish Malpani v. ACIT 94 TTJ 321 (ITAT Indore) 7. The ld. counsel of the Revenue, replying to the above contentions, submitted that the TDS was actually deposited on 7.10.2008 and not on 3.10.2008 by cheque. He further pointed out that the TDS was deducted in the month of March 2008 but the same was not deposited immediately which does not show the b .....

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de delay of only 3 days, which can be condoned by the CBDT, can be considered and condoned by the Tribunal by taking into consideration the totality of facts and circumstances and bonafide acts of the assessee. 9. On careful consideration of the above, we are of the considered view that as per the pay in slip and challan, the cheque of TDS was deposited with the SBI on 3.10.2008 and that it has to be presumed and is amply clear that the assessee deposited TDS on 3.10.2008 which was delayed by 3 .....

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t be attributed to the assessee as activation of online payment account was caused by the system failure on the part of the bank and not by the assessee. Undisputedly, and admittedly, 1.10.2008 was a bank holiday and 2nd October is a National Holiday being birthday of Mahatma Gandhi. TDS was deposited on the very next day, i.e. 3.10.2008 which also goes to prove the bonafide sincere efforts on the part of the assessee. In view of the above noted facts, we are satisfied that there was a plausible .....

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gh Court of Delhi in the case of Escorts Ltd Vs. CIT [supra] wherein referring to the maxim lex non cogit ad impossibilia it has been held that the law does not compel a man to do which he could possibly perform. In the present case also, the assessee made several efforts to deposit TDS with prescribed time frame but there was delay of three days. In our opinion, when the online payment facility could not be activated by the bank and the two days lapsed due to the bank and public holiday, then t .....

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on'ble Supreme Court has held that the maxim actus curiae neminem garvabit, i.e., an act of Court shall prejudice no man, is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other relevant maxim is lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossib .....

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was an impossibility. The case of the assessee trust, therefore, comes within, the ken of the maxim : hex non cogit ad Impossibilia. Taking into consideration the entire conspectus of the facts and respectfully following the precedent we uphold the impugned order. 12. In the order of ITAT Indore Bench in the case of Jagdish Malpani Vs. ACIT [supra] it was also held that: 9. We have considered the arguments advanced by the parties, in view of the materials available record, and orders of the lowe .....

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in the fire, these could not be supplied by the Department to the assessee. There is also no doubt that whatever reason for the delay has been assigned by the assessee which was beyond his power and control is bona fide one, but the material question before us is as to whether there is scope in the provisions of law to accommodate such person, keeping in view the exceptional facts and circumstances of the case. Though impossibility of performance is in general no excuse for not performing an ob .....

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dopt that general exception in the consideration of all particular cases (page No. 162 of Brooms Legal Maxims, 10th Edn., by Herberts Broom, LL.D). There is also no dispute that provision laid down under Section 80 of the IT Act is a machinery provision and as per the judgment of Hon'ble Supreme Court in the case of CIT v. National' Taj Traders (supra), relied on by the learned Authorised Representative, rule of strict construction applies only to charging provision or one imposing penal .....

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