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2020 (3) TMI 177 - HC - Income TaxPenalty u/s 221 - Proceedings u/s 201(1)(A) - Non-remittance of TDS, which assessee had collected or retained - HELD THAT - Assessee had made three payments for purchase of sites, three payment for purchase of cars and as such, it was noticed that cars which were purchased was in addition to the existing four cars purchased in the earlier year and the reason of business expediency raised or pleaded by assessee was not suspectable as it was not in the proximity of truth. This finding of fact which had been recorded by the Assessing Officer when being set aside by the 1st appellate authority the least that was expected from Commissioner of Income Tax (Appeals) was to record a finding which would disprove said fact or in other words reasons had to be assigned. This exercise having not been undertaken by CIT (Appeals) and by a cryptic order as noticed herein, finding of the Assessing Officer having been set aside, this has persuaded the tribunal to reverse the finding of Commissioner of Income Tax (Appeals) and restore the finding of the AO in part viz., affirming levy of penalty but reducing the quantum of penalty. We find from the order of tribunal that the finding recorded by the tribunal to arrive at a conclusion is based on sound appreciation of material available before it. In fact, a clear finding has been recorded by the tribunal that question of financial stringency pleaded by assessee was not proved. Even otherwise, it has been held that financial stringency would not justify the non-remittance of TDS to the Government, in as much as, it would amount to utilization of money payable to the appropriate government. As such, by extending its benevolence, tribunal has directed the Assessing Officer to restrict the levy of penalty to a sum of ₹ 20,55,573/-in substitution to ₹ 77,95,155/- levied by Assessing officer. This finding would not call for interference by us particularly when assessee having been declared as an assessee in default under section 201 (1) of the Act by order dated 30.07.2013 and said order having not been challenged by the assessee.
Issues:
1. Correctness and legality of the order dated 07.10.2016 passed by Income Tax Appellate Tribunal, Bangalore Bench 'C', Bangalore. 2. Levy of penalty under section 221 of the Income-tax Act, 1961. 3. Financial difficulties leading to non-remittance of TDS by the assessee. 4. Assessment of penalty amount and its modification by the Income Tax Appellate Tribunal. Analysis: Issue 1: Correctness and legality of the tribunal's order The appellant challenged the order passed by the Income Tax Appellate Tribunal, Bangalore Bench 'C', Bangalore, dated 07.10.2016, regarding the levy of penalty. The tribunal modified the penalty amount from ?77,95,155/- to ?20,55,573/-, which was the primary contention in this appeal. Issue 2: Levy of penalty under section 221 of the Income-tax Act The penalty was initiated under section 221 of the Income-tax Act due to the non-remittance of TDS by the assessee. The Assessing Officer levied a penalty of ?77,95,155/-, which was challenged by the appellant. The Commissioner of Income Tax (Appeals) set aside the penalty, citing financial difficulties faced by the assessee and subsequent remittance of TDS as reasons. Issue 3: Financial difficulties leading to non-remittance of TDS The appellant contended that the non-remittance of TDS was due to acute liquidity crunch and not deliberate negligence. The Commissioner of Income Tax (Appeals) found merit in this argument, considering the financial difficulties faced by the assessee during the relevant period. However, the tribunal reversed this finding, emphasizing that financial stringency does not justify non-remittance of TDS to the government. Issue 4: Assessment of penalty amount and its modification The tribunal, while acknowledging the financial challenges faced by the assessee, restricted the penalty to ?20,55,573/- instead of the initial amount levied by the Assessing Officer. The tribunal's decision was based on a thorough evaluation of the facts and materials available, concluding that the financial stringency plea was not substantiated. The tribunal directed the Assessing Officer to reduce the penalty amount, considering the default status of the assessee under section 201(1) of the Act. In conclusion, the High Court dismissed the appeal, noting that the tribunal's decision was well-founded, and there were no substantial grounds to challenge the penalty modification. The court upheld the tribunal's decision, emphasizing the default status of the assessee and the lack of challenge to the initial order.
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