TMI Blog1999 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the penalty levied under section 272A(2)(g) on the ground that if at all any breach was committed, it was only a technical default ?" The short facts are as under : It is not disputed before us that the assessee deducted the amount of tax deducted at source (hereinafter referred to as "TDS") amounting to Rs. 510 (sic) within time as contemplated under section 194C of the Act. It is not disputed before us that the amount deducted was deposited into the Government account and thus so far as the payment is concerned it is not disputed that in accordance with law the payment was made to the Government treasury. Thus, there is no loss so far as revenue is concerned. Now, in the instant case, the assessee was required to comply with secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted for the entire year. In support of the contentions, several decisions were cited which are referred to in paragraph 8 (pages 32 and 33 of the paper book) of the order passed by the Tribunal while disposing of the appeal. On behalf of the Revenue, it was contended that a provision is made with a view to see that the person in whose favour the certificates are to be issued may not suffer any loss on account of non-furnishing of certificates in time. It was submitted before us that if the contention is accepted then the provisions made under section 272A(2)(g) of the Act would become redundant. Before the Tribunal it was pointed out that the issuance of show-cause notice was without jurisdiction. However, when the mistake was notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant provisions of the Act make it clear that one has to follow the procedure laid down under the provisions for deduction of the amount, to deposit the amount within the stipulated period with the Government treasury and, thereafter, to issue the certificate to the persons concerned. On analysis, the Tribunal found that the assessee has deducted the amount and has also deposited with the Government treasury, and only the last step of forwarding the certificate to the party concerned, was not taken under the bona fide belief that the same could be forwarded at the end of the accounting year. The Tribunal was of the view that this cannot be said to be unbelievable. So far as the third step is concerned, none has made any grievance before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision." Reading the aforesaid passage it is very clear that the intention of the Legislature is to emphasise the fact that there is no loss of revenue, and to provide a remedy for such loss. From the facts of the case which we have indicated earlier, the assessee never bothered to file the return of income in time and after almost three years, returns were filed where also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the company in, failing to register the company as a dealer acted in the honest and genuine belief that the company was not a dealer. Granting that they erred, no case for imposing penalty was made out." In essence, the apex court has pointed out that penalty will not be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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