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TMI Blog2015 (5) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... trary, unjust and excessive in the facts and circumstances of the case. 02. For that the Learned Addl. CIT (TDS), Bhubaneswar has not afforded reasonable opportunity of hearing to the appellant but passed the order hastily on 19/03/2014 imposing penalty at Rs. 80,960/- for the Financial Year:-2009-10 relevant to the Assessment Year:-2009-10, which is not only arbitrary but also illegal, being violative of natural justice, hence the order passed is liable to be quashed. 03. For that the imposition of penalty is a quasi-criminal proceeding. The Forum below failed to establish that the appellant has not deliberately and consciously deposited the TDS amount in time, hence the order passed imposing penalty U/s.272A(2)(k) of the Act is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty without application of mind is illegal and liable to be cancelled. 04. For that the calculation of penalty U/S.272A (2)(k) has not been made properly, hence the order passed is liable to be quashed." 3. Short facts of the case are as under:- In both the cases, the assessee has filed the quarterly e-TDS statements in Form Nos. 24Q & 26Q for different quarters for the F.Y. 2009-10 & 2010-11. Since, there was no reasonable explanation for delay in filing 24Q/26Q statements, the JCIT (TDS) imposed the penalty u/s. 272A(2)(k) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act', for short). The total delay calculated by JCIT for all either quarterly statements comes to 3888 days in A.Y. 2010-11 & in A.Y. 2011-12 the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration of reasonable cause u/s. 273B of the Act. Assessee had made technical default for not filing the quarterly statements pertaining to on time deduction of tax at source and on time submissions of TDS certificates to the deductees leading to no loss of revenue, therefore, penalty may be deleted. 6. On the other hand, learned DR relied upon the order of the Ld. CIT(A). 7. We have heard the contentions of the rival parties at length. We do find that the penalty so levied by the AO and confirmed by the learned CIT(A) appears to be leaning more on holding assessee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loaded in the electronic media which software was only available to the franchisees outsourced by the Department or the NSDL being the apex Nodal Agency. The learned DR has insisted that the proviso to Rule 31-A of the I.T.Rules clearly indicate that the penalty was ripe for levy not because the insistence of the Department on assessee to e-file it on a particular date for calculating number of days the default continues. We are unable to consider the proposition of the learned DR insofar as the Department itself was handicapped as the bonafide of the assessee has been established in the negative way as they would have filed the hard-copy of the quarterly statements which the Department refused to acknowledge. Therefore, the computer genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without external aid. The assessee is also not competent to do so by itself as per rule 37B and "Filing of Return of Tax deducted at source" scheme 2003, which requires the submission of quarterly statement through NSDL or other approved agencies i.e third party, not under the control of the assessees. There is neither any willful negligence nor any malafide on the part of the assessee in the matter of compliance and the delay was due to reasonable cause, the default being beyond the control of the assessee deductor. It is at best a technical or venial breach of the provisions of the act or where the breach flows from a bonafide belief that the assessee is not liable to act in the manner prescribed by the statute. The penalty u/s 272 (A)(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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