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2020 (4) TMI 31 - AT - Income TaxPenalty u/s 272A(2)(k) - delayed filing of TDS statement - AO observed that there are substantial delay of 394 to 729 days in filing TDS statement, which makes the assessee amenable to imposition of penalty 272A(2)(k) - HELD THAT - As could be seen from the facts discussed above, the Assessing Officer had imposed penalty under section 272A(2)(k) of the Act for different quarters of the financial year 2009 10 due to delay in filing of TDS statements. However, while deciding assessee s appeals for the first three quarters of the financial year 2009 10, the Tribunal 2018 (5) TMI 1984 - ITAT MUMBAI has deleted the penalty imposed under section 272A(2)(k) of the Act. Facts being identical, respectfully following the aforesaid decision of the Co ordinate Bench, we delete the penalty imposed - Ground raised by the assessee is allowed. Penalty u/s 271C - failure on the part of the assessee to deduct tax at source - HELD THAT - The fact that the Assessing Officer has not passed any order under section 201(1) of the Act treating the assessee as an assessee in default has not been disputed by the Revenue. In the decisions relied upon by the learned Authorised Representative, it has been categorically held that without declaring the assessee as assessee in default under section 201(1) no penalty under section 271C of the Act can be imposed - We delete the penalty imposed under section 271C of the Act. Ground raised by the assessee is allowed.
Issues:
1. Imposition of penalty under section 272A(2)(k) of the Income Tax Act for delayed filing of TDS statements. 2. Imposition of penalty under section 271C of the Income Tax Act for failure to deduct tax at source. Analysis: Issue 1: The first issue in this appeal concerns the imposition of a penalty under section 272A(2)(k) of the Income Tax Act for delayed filing of TDS statements. The Assessing Officer found substantial delays ranging from 394 to 729 days in filing the TDS statements for different quarters of the financial year 2009-10. The penalty was imposed based on the quantum of delay, with the appellant challenging the penalty of ?39,400 for the fourth quarter. The Commissioner (Appeals) upheld the penalty, but the Tribunal, considering previous decisions, deleted the penalty citing no malafide intention on the part of the assessee to file the statements belatedly. The Tribunal, following a Co-ordinate Bench decision, allowed the appeal and deleted the penalty. Issue 2: The second issue pertains to the imposition of a penalty under section 271C of the Income Tax Act for failure to deduct tax at source. The Assessing Officer noticed a default in depositing TDS amounting to ?1,31,533 for over 365 days. The appellant explained that upon discovering the lapse, they paid the TDS amount from their own funds along with interest, claiming no malafide intention. Despite the explanation, the Assessing Officer imposed a penalty under section 271C. The Commissioner (Appeals) upheld the penalty, but the Tribunal, in line with legal precedents, ruled that without declaring the assessee as an assessee in default under section 201(1) of the Act, the penalty under section 271C cannot be imposed. Citing relevant decisions, the Tribunal allowed the appeal and deleted the penalty. In conclusion, the Tribunal allowed both appeals, deleting the penalties imposed under sections 272A(2)(k) and 271C of the Income Tax Act, respectively. The decisions were based on the absence of malafide intent in the delayed filings of TDS statements and the requirement to declare the assessee as an assessee in default before imposing penalties for failure to deduct tax at source.
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