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2010 (4) TMI 977 - HC - VAT and Sales TaxDelayed deposit of TDS - Held that - The respondent-assessee had made all efforts not to breach the mandatory provision of section 35(4) of the Act of 2005. The respondent-assessee in fact made efforts to deposit TDS on the very date, when the same was deducted. It is only that the draft prepared by the respondent was not encashable in the manner it was prepared. A series of further efforts were also made, but because of one or the other defect deposit could not be made. In the aforesaid sequence of facts, it emerges that the respondent did not retain the amount in his own hands, he had prepared drafts of the amount payable, and had deposited the same with the revisionist. For the delayed deposit, the respondent tendered interest on account of delayed payment under section 35(9) of the Act of 2005. In the aforesaid view of the matter, we are satisfied that the maximum penalty imposable under section 35(8) of the Act of 2005 was wholly unjustified. Reduction thereof at the hands of the Tribunal vide the impugned order dated September 7, 2009, in our view, was fully justified.
Issues Involved:
1. Deposit of TDS and the penalty for delayed deposit. 2. Discretionary nature of imposing penalties under Section 35(8) of the Uttarakhand Value Added Tax Act, 2005. 3. Justification for the reduction of the penalty by the Commercial Tax Tribunal. Issue-wise Detailed Analysis: 1. Deposit of TDS and the Penalty for Delayed Deposit: The respondent had deducted TDS during February and March 2006, which was required to be deposited within one month into the Government Treasury. However, the deposit was made on May 16, 2006. The assessing officer, exercising the power under Section 35(8) of the Uttarakhand Value Added Tax Act, 2005 ("the Act of 2005"), imposed a penalty equivalent to twice the amount of TDS payable. This decision was challenged by the respondent before the Joint Commissioner (Appeal) II, Commercial Tax, Dehradun, Uttarakhand, but the appeal was dismissed. The respondent then appealed to the Commercial Tax Tribunal, Uttarakhand, which reduced the penalty to an amount equivalent to the TDS required to be deposited. 2. Discretionary Nature of Imposing Penalties under Section 35(8) of the Act of 2005: The learned counsel for the revisionist argued that the assessing officer was justified in imposing the maximum penalty due to the violation of the mandatory condition under Section 35(4) of the Act of 2005, which required the TDS to be deposited within one month from the date of deduction. However, the court noted that the imposition of the penalty is discretionary, and the competent authority can impose a penalty up to twice the amount of TDS liable to be deposited. The court emphasized that the facts and circumstances of each case must be considered when determining the quantum of the penalty. 3. Justification for the Reduction of the Penalty by the Commercial Tax Tribunal: The Commercial Tax Tribunal reduced the penalty imposed by the assessing officer, considering the factual position that the respondent had made all efforts to deposit the TDS on time. The respondent had prepared drafts for the amount payable and attempted to deposit them, but due to issues with the drafts, the deposit was delayed. The respondent had also paid interest for the delayed deposit under Section 35(9) of the Act of 2005. The court found that the maximum penalty was unjustified and upheld the Tribunal's decision to reduce the penalty, stating that the respondent did not retain the amount and had made genuine efforts to comply with the mandatory provisions. Conclusion: The court dismissed the commercial tax revision, finding no merit in the revisionist's arguments. The reduction of the penalty by the Commercial Tax Tribunal was deemed fully justified based on the respondent's efforts and the circumstances that led to the delay in depositing the TDS. The court also noted that since the main revision was dismissed on merits, there was no need to pass a formal order on the application for condonation of delay.
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