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TMI Blog2016 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... -2015 - SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Appellant : Appellant : Shri D. K. Parikh, A.R. For The Respondent : Shri James Kurian, Sr. ORDER PER RAJESH KUMAR, A.M: These appeals filed by the assessee are against the orders of CIT(A)-8, Ahmedabad of various dates for all the above assessment years. Since the issue involved in some of the appeals is of common nature and therefore these appeals are heard together and are being disposed of by the consolidated order for the sake of convenience and brevity. We shall take up the ITA No.2463/Ahd/2015 for A.Y. 2009-10. Assessee has raised following ground: 1. The learned Additional Commissioner of Income Tax, TDS Range, Ahmedabad has erred in facts and on law in levying penalty of ₹ 5,20,400/- u/s.272A(2)(k) of the Act. 2. The issue raised in the ground of appeal relates to confirmation of penalty by CIT(A) of ₹ 5,20,400/- levied u/s.272A(2)(k) by Additional Commissioner of Income Tax, TDS Range, Ahmedabad. 3. The brief facts of the case are that the assessee company was engaged in the business of laying of cross country pipelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement in Form No.27EQ only if the assessee had collected the TCS and the said statement was required to be filed only after the amount of TCS was collected and paid to the Central Government . In the present case, there was no question of filing Form no. 27EQ up to 30th June, 2012 and hence, the penalty u/s.272A(2)(k) was wrongly levied. The A.R. placed reliance on decision in M/s. Porewal Creative Vision Pvt. Ltd. vs. ACIT in ITA No. 5556 5557/Mum/2009, A.Y. 06-07 07-08, in which it was held that quarterly statement (similar provision to Section 200(3) for TDS Form No.26Q) can be filed only after payment of tax to the Central Government and for delay or default to collect tax there are other provisions u/s.206C(6A) and 206C(7) and therefore, penalty was not leviable. (ii). Even if, the default was there, no penalty was leviable as the default was technical and venial as the assessee has made the payment of TCS alongwith interest till the date of deposit and therefore no loss to the Revenue. The assessee did not collect the TCS and thus, the same was paid out of assessee s own pocket with interest and therefore, the order u/s.206C(6A) and 206C(7) were to be passed. Reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed the amount of tax deductible or collectible, as the case may be;] The relevant extracts of provision of Section 206C sub-section 3are relevant and referred to Section 272A(2)(k) and therefore are reproduced as under: (3) Any person collecting any amount under sub-section (1) [or subsection (1C)] [or sub-section (1D) shall pay within [the prescribed time] the amount so collected to the credit of the Central Government or as the Board directs: [Provided that the person collecting tax on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this section shall, after paying the tax collected to the credit of the Central Government within the prescribed time, [prepare such statements for such period as may be prescribed] and deliver or cause to be delivered to the prescribed income-tax authority, or the person authorized by such authority, such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed.] A close perusal of the above provisions of Section 271A(2)(k) reveals that a penalty under this section can only be imposed if a person fails to deliver or cause to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said delay. The breach of duty on the part of the assessee does merely technical and venial breach and therefore, in view of the provision of Section 273B of the Act, the penalty was rightly deleted. The delay in filing the quarterly statement was certainly a default on the part of assessee which attracted penalty u/s.272A(2)(k) of the Act, unless the assessee shows a reasonable cause within the meaning of Section 273B of the Act. Thus, we are required to adjudicate whether on facts of the instant case the cause which has been shown by the assessee constitutes a reasonable cause u/s273B of the Act or not. The finding of the Learned Commissioner of Income tax (Appeals) is that the assessee was prevented from filing the quarterly statements within prescribed time because of the lack of knowledge of the requirement of law on the part of the Directors of the assessee-company and its employees. We find that the provisions of furnishing of the quarterly statements were introduced under sub-section (3) of section 200 by the Finance (No.2) Act, 2004 w.e.f. 1-4-2005. We find that Revenue could not bring any material before us to controvert the above finding of the Learned Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered view in the light of above decisions that the penalty levied u/s.271A(2)(k) cannot be sustained and therefore, the same is hereby ordered to be deleted. A.O. is directed accordingly. ITA Nos. 2464, 2465 2467/Ahd/15 for A.Ys. 2010-11 to 2012-13 8. The issue raised in the ground of appeal in ITA Nos. 2464 to 2467/Ahd/15 for A.Y. 2010-11 to 2012-13 is same as decided by us in ITA No.2463/Ahd/2015 for A.Y. 2009-10 and therefore, facts being same, our decision in the said ITA shall apply to these appeals as well and as a result, the appeals of the assessee are allowed by deleting the penalty for A.Y. 2010- 11 ₹ 3,74,400/-, for A.Y. 2011-12 ₹ 2,28,400/- and for A.Y. 2012-13 ₹ 82,300/-. The A.O. is directed accordingly. ITA No.2466/Mum/2015 for A.Y. 2011-12 9. The issue raised in the ground of appeal in ITA No. 2466/Ahd/15 for A.Y. 2011-12 is regarding TDS whereas the issue as decided by us in ITA No.2463/Ahd/2015 for A.Y. 2009-10 is regarding TCS and therefore, our decision in the said ITA shall apply to this appeal as well and as a result, the appeal of the assessee is allowed by deleting the penalty of ₹ 1,45,600/-. The A.O. is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and venial breach which resulted in to the no loss to the Revenue as the TCS was paid along with interest thereon till the date of deposit and therefore, penalty could not be imposed. The ld. Counsel placed reliance on the decision in the case of Khodidas Family Trust vs. ACIT in ITA No.1478/Ahd/2009 , DCIT vs. Nuclear Power Corporation Of India Ltd. in ITA Nos. 625 to 627/Ahd/2013 Harsiddh Construction Pvt. Ltd. vs. CIT 244 ITR 417 (Guj.), 15. The ld. D.R., on the other hand, relied on the orders of authorities below. 16. We have heard the rival submissions and perused the material on record. We find that the assessee was not deducting TCS on sale of scrap and after survey the assessee deposited the TCS along with interest. Earlier the compliance with TCS provisions could not be made as the assessee was not aware of such provision which was a bonafide omission. In the case of Khodidas Family Trust vs. ACIT in ITA No.1478/Ahd/2009, ITAT, Ahmedabad B Bench held as under: The amount of TDS along with interest u/s201(1A) of the Act was paid by the assessee and therefore there is no loss to the Revenue and it was only a technical breach of the provisions of the law for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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