9911796707
TMI Blog2015 (5) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... d unintentionally. The assessee deductor is law compliant and the delay occurred only due to the reason that the assessee deductor is 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 assessee deductor has no technical competency to file the return by itself 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) cannot be levied in a routine manner. Law is well settled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Year:-2010-11 relevant to the Assessment Year:-2011-12, 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 to be quashed. 04. For that there being reasonable cause for delay in filing the returns / statements etc., the same should have been considered and the delay should have been condoned, but imposition of penalty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 24Q 4th 30.5.2011 -do- 428 0 0 26Q 1st 15.7.2010 23.8.2010 39 3,866 3,866 26Q 2nd 15.10.2010 5.8.2011 294 1,73,233 29,400 26O 3rd 15.1.2011 -do- 202 94,889 20,200 26Q 4th 15.6.2011 -do- 67 2,19,608 6,700 Grand Total 2995 4,91,596 60,166 4. The matter was carried to the Ld. CIT(A) and the Ld. CIT(A) has partly allowed the appeals. Therefore, assessee is in appeal before u/s. 5. Learned AR submitted before u/s. that the issue stands covered by the decision of ITAT, Cuttack Bench in the case of Garrision Engineer (I) R D Vs. ACI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 generated number for acknowledging such receipt of such statements was not in the hands of the assessee insofar as the generation of that number would have never occurred till such time the PANs and the information available on AS-26 would have been tallied by the computer system itself. We have been submitted that it was not the case that the assessee was in default not being computer literate their principal officers who have been held responsible for such late filing of the quarterly statements was an administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2] 177 CTR (Raj) 586 and the decision of ITAT, Mumbai Bench in the case of Royal Metal Printers Pvt. Ltd. Vrs. Asst CIT [2010] 37 SOT 139(Mum) and the decision of ITAT, Cuttack Bench in the case of Garrision Engineer (I) R D, Chandipur, Balasore Vrs. The Addl. Commissioner of Income Tax (TDS), Bhubaneswar (supra), wherein it has been clearly held that for such technical or venial breach supported by reasonable cause, penalty under sec. 272(A)(2) is not leviable and imposition of penalty is not justified for the reason that it was for the first time the requirement to convert the hard-copy into soft-copy was to be learnt by respective Government DDOs from the department officials. There is reasonable cause for delay in filing ETDS return U/s 273B. Considering the facts and circumstances of the cases in its entirety, we are of the considered view that the penalty so levied in the case of the assessee is not all justified. We, therefore, cancel the penalty levied u/s.272A(2)(k) for the assessee for the respective AYs as captioned in the cause title of this order by allowing the appeals under consideration. 8. In the result, both the appeals for the respective Assessment Years are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
