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TMI Blog2013 (11) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... isputedly no default - There arises no reason for non-filing of TDS return with an intentional act or willful act to attract a quasi-criminal, imposition of penalty. Assessee contended that the penalty was imposed by the Additional CIT (TDS) u/s. 272A{2)(k) of the I.T. Act, 1961 being illegal, arbitrary, uncalled for and against the facts on record and the learned CIT(A) should have quashed the same - the explanation to show cause notice should have been considered by the learned Additional CIT (TDS) judicially and in accordance with law and hence the learned CIT(A) should have considered the same and he was not justified in dismissing the appeal - The taxes having been deposited the authorities below should have taken a liberal view as it is a quasi criminal proceeding and the question of mens rea was involved – Decided in favour of Assessee. - ITA NO.91/CTK/2013 - - - Dated:- 11-3-2013 - K K Gupta And K S S Prasad Rao, JJ. For the Appellants : Shri S N Sahu, D Mohapatra, AR. For the Respondent : Shri N K Neb, DR. ORDER:- Per: K K Gupta: "1. That the exparte order passed by the learned CIT(A) vide his order dated 24-12-2012 in appeal No. 0569/2010-il is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation and levied the impugned penalty u/s.272(2)(k) of the I.T.Act,1961. 3. Aggrieved the assessee appealed before the first appellate authority, who having confirmed the same the assessee is in appeal before the Tribunal. 4. The learned Counsel for the assessee reiterated the submissions as were made before the authorities below by submitting that though the ignorance of law is of no excuse, still then actual fact is that may it be Bankers or Govt. Officers, the people or the employees are still in learning stage so far as computerized system of filing is concerned and the E-Banking services have not been fully developed. Staffs are yet to be acquainted with the provisions of I.T. Laws Visa-a-Vis computerized system, that to in rural areas it is under developed. The default is not deliberate or intentional there is no malafide intention or taint in it. In the matters of penalty proceeding always "mensrea" has to be taken into consideration. Here in this case there is no element of fraud or willful neglect. More so, the present Branch Manager was not there when the default was committed. Notice for show cause should have been made to the then Branch Manager, who could ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a Nationalised Bank the question of any such malafides does not arise. Further, he submitted that the assessee could not collect the details of PAN Nos. for all the deductees. There are only technical breach. Assesses did not derive any benefit what so ever by not filing the quarterly TDS return in time as the amount of T.D.S. was duly deposited in the Govt. Treasury to the credit of the Govt. In view of the above, he contended that the act of the assesses cannot be said to be intentional and willful and therefore, penalty should not have been levied because the assessee was prevented by sufficient cause. Non filing of statement does not result in any Revenue loss. 4.2. Concluding, the learned Counsel for the assessee submitted that under similar circumstances penalty have been deleted. He relied on the following decisions. 1) Branch Manager, Punjab National Bank Vs. Additional Commissioner of Income Tax (2011) 140 TTJ 622(Lucknow). 2) Garrision Engineer (I) R D, Chandipur, Balasore Vs. Additional Commissioner of Income Tax (TDS), Bhubaneswar, Order dated 22-02-2013, I.T.A.T. Cuttack Bench Cuttack. 4.3. The learned Counsel for the assessee prayed for cancella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basic requirement of uploading was available on Form AS-26 which changed in accordance with the PANs obtained at any point of time was known to the Department when the delay in filing such statements was in relation with the levy of penalty. We had occasions to deal with such similar issue in the case of Garision Engineer (I) R D v. ACIT (TDS) in ITA No.69/CTK/2013, wherein the penalty levied u/s.272A(2)(k) was deleted. We have also decided a group of cases of different assessees in the consolidated order passed in ITA Nos.111,97,86,87,88,75 and 67/CTK/2013,the relevant portion of which is reproduced below. "3. We have heard the contentions of the rival parties at length. We do find that the penalty so levied by the respective AOs and confirmed by the learned CIT(A) appears to be leaning more on holding assessees in default for such penalty as a mechanical/automatic levy insofar as it is the Department itself, who has insisted the e-filing of such returns as late as making the respective assessees literate about the data to be uploaded on the basis of tax deducted at source already given credit to by the I.T. Department on the basis of TDS certificates furnished by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was not the case that the assessees were in default not being computer literate their principal officers who have been held responsible for such late filing of the quarterly statements was an administrative glitch. It was not in the interest of the Government employee to hold back the information which they have already gathered insofar as they are now being governed by the computer which software has its own filters for accepting the quarterly statements for which the assessees in default have not maintained any record to establish that efforts ware made by them to reduce the time delay in filing such statements. Concluding, we observe that it is only a question of delayed filing of the e-TDS quarterly return, which was entrusted to an authorized service provider and the delay has occurred unintentionally. The assessees deductors are law compliant and the delay occurred only due to the reason that the assessees deductors are dependent on information of TDS and its deposit from the sub treasury of the Government and filing of e-return through the designated service provider of Income-tax Department. The assessees deductors have no technical competency to file the return by ..... 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