TMI Blog2020 (12) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... s was misconceived by the AO being the TDS statement in Form 26Q was not delivered by the assessee within the specified time. AO has accepted that the assessee was not under any obligation to deduct TDS in respect of the alleged transaction but the assessee was under the obligation to collect the tax in respect of various amounts received by the assessee and consequently the assessee was required to submit the statements in Form No. 27EQ. Once the AO has accepted this fact that the assessee was not required to deduct TDS or submit Form 26Q then the initiation of the penalty by the AO for such a non- existing default renders the penalty order invalid. The invalid initiation of the penalty vitiates the entire proceedings and consequently the penalty orders passed u/s 272A(2)(k) based on absolutely non- existing grounds is not sustainable in law. The CIT(A) has summarily dismissed all the appeals of the assessee without even discussing the correct fact brought on record and accepted by the AO while passing 154 order. Hence the impugned penalty orders are not sustainable in law and liable to be quashed. - Decided in favour of assessee. - ITA Nos. 178 to 182/ALLD/2018 - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount in question pertains and relates to the appellant. 10. Because, the Learned A.O. has failed to appreciate that in this computerized regime if somebody has wrongly deposited the TDS amount on the assesses TAN, how can the said assessee be held liable to file the 26Q statement. Till date there no mechanism has been evolved by the Income Tax Department to restrict any person to deposit TDS amount on wrong TAN or for making any correction or rectification in case any such mistake. 11. Because, the impugned judgment and order dated 17.10.2017 has been passed by the Commissioner of Income Tax (Appeals) without recording any independent finding or observation and without considering the submissions made by the appellant. The exorbitant liability and demand fastened upon the appellant even without perusing the entire material available on record. 12. Because, the ratio laid down in the case of Anil Goel Vs. CIT (Appeals-I), Ludhiana reported in (2008) 306 ITR 212 (P H) relied upon by the court below is not applicable under the facts and circumstances of the present case particularly in view of the fact that the appellant has specifically denied the amount dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to outstanding arrears of demand. 19. Because, thereafter, the appellant gathered information by making inspection and enquiries after seeking appropriate permission from the competent authorities with regard to the subject matter of controversy and deposited requisite fee on 06.04.2018 alongwith an affidavit on 07.04.2018 and it transpired that the arrears of demand does not pertain or relate to the appellant and as such an appropriate application has been filed to obtain the certified copies of all the relevant documents together with the copy of impugned order which has been issued on 14.04.2018 to the appellant whereupon the appellant is filing the present appeal. 20. Because, there is no deliberate delay in filing the present appeal and the delay, if any, has occurred only on account of the facts and circumstances of the matter beyond the control of the appellant which may kindly be condoned and the present appeal may kindly be heard and decided on merits so that justice be done. 21 5ecause, the order is bad in the eyes of law and against the facts and submissions of the case. 22. The appellant craves leave to add/alter any of the ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income Tax Act for the alleged default of delivering the statement of TDS in Form 26Q within the time specified in section 200(3) read with proviso to section 206(3). In the penalty proceedings, the assessee has raised an objection against levy of penalty and contended that the alleged transactions / amount deductible as TDS as mentioned by the AO do not pertain to the assessee as the assessee has not made any payment or credit any payment which is subjected to TDS. Despite this fact pointed out by the assessee, the AO proceeded to pass the penalty order u/s 272A(2)(k) of the Income Tax Act and levied the penalty for default in / delay in delivering the TDS statement in Form 26Q of the Act. The AO has passed separate order for each Financial Year / Assessment Year. The assessee challenged the action of the AO before the CIT(A) and contended that the order passed by the AO is illegal and invalid ab-initio, erroneous and bad in law. The assessee in the grounds of appeal has also pointed out that there is no justification for levy of penalty and raising demand for not filing of Form 26Q when there was no such obligation on the assessee to deduct TDS or submit Form 26Q. The CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich requires to submit in Form 26Q, the levy of penalty for default of delivering the From 26Q is invalid and consequently the penalty order passed by the AO is bad in law, ab initio. Once the initiation of the penalty is based on some wrong facts and wrong ground which is not an error or mistake due to any incorrect mentioning of provision of law but the very basis of initiation of the proceedings was misconceived by the AO being the TDS statement in Form 26Q was not delivered by the assessee within the specified time. This fact is accepted by the AO while passing an order u/s 154 on 05.06.2014 wherein the AO has accepted that the assessee was not under any obligation to deduct TDS in respect of the alleged transaction but the assessee was under the obligation to collect the tax in respect of various amounts received by the assessee and consequently the assessee was required to submit the statements in Form No. 27EQ. Once the AO has accepted this fact that the assessee was not required to deduct TDS or submit Form 26Q then the initiation of the penalty by the AO for such a non existing default renders the penalty order invalid. The invalid initiation of the penalty vitiates the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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