TMI Blog2016 (8) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effective grounds involved in this appeal read as under: 1. The order of the ld. CIT(A) dated 15.4.2011 is bad in law and on facts. 2. That on facts and in law, the ld. CIT(A) has erred in holding that the amount of ₹ 58,86,151/- was rightly disallowed u/s 40(a)(ia) of the Income-tax Act, 1961 as the TDS made thereon was deposited in the Government s account after the due date specified in sub-section (1) of section 139 of the Income-tax Act, 1961, without appreciating the fact that the delay 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 ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ICICI Bank it could not be activated before 30.9.2008 and after bank holidays, the tax was deposited on 3.10.2008 through SBI which shows the bonafide efforts of the assessee to deposit TDS on time. The assessee cannot be expected to do or perform impossible things. The ld. AR also contended that the three days of delay in payment of TDS was not intentional 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 745 [Delhi] for the purpose of application of section 273C in the backdrop of section 273B of ht Act, which is applicable to the facts of the present case. 6. To support the above contentions, the ld. AR has also placed reliance on the ratio and proposition of the following decisions : 1. Woodward Governors India (P) Ltd. Vs. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and reasonable cause which caused three days delay in depositing the tax to the exchequer, which was beyond the control of the assessee. We also hold that the assessee had sufficient funds to deposit TDS on or before 3.9.2008 and it also made several efforts to deposit tax within the prescribed time frame but failed to do so due to reasons beyond his control. 10. Now, at this juncture, it would be necessary and appropriate to respectfully consider the ratio of the decision of the Hon'ble High 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no excuse with the assessee for filing the return late. The assessee had also applied for the copies of the seized books and documents to the Department along with required challan of Rs. loo but due to destruction of the same 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 obligation, yet when the obligation is one implied by law, impossibility of performance is a good excuse. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the Revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in it general aphorisms, all intentions of compelling to impossibilities, and the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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