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TMI Blog2017 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... d at source, penalty is leviable under sub-section (8). The provisions in that regard are reproduced:- "(1) Without prejudice to any other mode of recovery, payment or collection of tax under this Act, the State Government may, by notification in the Gazette, direct that, in a specified case and in the specified circumstances but subject to such conditions as may be specified, every specified person responsible for making payment to the selling dealer, for discharge of liability on account of valuable consideration payable on sale of goods in such cases as may be specified, shall, at the time of making such payment to the seller, either by credit or in cash or in any other manner, towards satisfaction of tax payable by the dealer on account of sale of any taxable goods, deduct an amount determined in the manner specified: PROVIDED that where in case of a works contract, the contractor has awarded a sub-contract and the notification provides for deduction of amount by the contractee from the payments made to contractor, the contractor responsible for making any payment or discharge of any liability to any sub-contractor, in pursuance of a contract with the sub-contractor, shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of delayed deposit of tax. Such imposition of penalty, however, has been set aside by the Tribunal, noticing the fact that revenue was not adversely affected since interest upon such delayed amount has been deposited. Para 8 and 9 of the Tribunal's order which notices reasons for quashing penalty, reads as under:- "8(1). Section 54 (1)(1)(a) of the U.P. Value Added Tax Act, 2008 and Section 34(8) of the U.P. Value Added Tax Act, 2008 are two provisions which prescribe imposition of penalty in case any dealer fails to deposit the tax within the time prescribed by the act. Neither Section 54 (1)(1)(a) nor Section 34 (8) of the U.P. Value Added Tax act, 2008 provides any time limit for the assessee to deposit the admitted tax or tax deducted at source along-with interest thereon for the period by which the deposition of tax was delayed and after which the assessing officer will have no option left but to inflict a penalty upon the assessee notwithstanding that the assessee has deposited the admitted tax along-with interest thereon. Penalty under Section 54 (1)(1)(a) and also under Section 34 (8) of the U.P. Value Added Tax Act, 2008 can be imposed only when the assessee fails ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1948, against the judgment and order dated 03.01.2008 passed by the U.P. Trade Tax Tribunal, Lucknow in Second Appeal No.218 of 2006, for the assessment year 2000-2001, where the penalty under section 8-D(6) was cancelled. Heard Sri Sanjeev Sankhdhar, learned counsel for the department and Sri Sudeep Seth, learned counsel for the assessee. After hearing both the parties, it appears that for the month of November 2000 and March 2001, the TDS was not deducted by the petitioner. So, the A.O. has levied the penalty under section 8-D(6) of the Trade Tax Act, vide order dated 19.07.2004. The same was upheld by the first appellate authority. However, the Tribunal vide its impugned order has cancelled the penalty. From the record, it appears that the petitioner had deposited the TDS alongwith interest for the delay. Thus, there was no loss to the revenue. When the TDS was deposited alongwith interest and there was no loss to the revenue, then there was no justification for levy of the penalty. There was no malafide intention on the part of the assesee and by keeping in mind the ratio laid down in the case of Price Waterhouse Cooper vs. CIT, JT 2012 (10) SC 523, there was no jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a necessary corollary." 6. It is, therefore, contended that the Tribunal has erred in interfering with the imposition of penalty for the reasons disclosed therein. 7. Sri Praveen Kumar appearing for assessee, has placed reliance upon the order of the Lucknow Bench of this Court in Commissioner Commercial Tax (Supra). Reliance is also placed upon judgement of Apex Court in Price Waterhouse Coopers Pvt. Ltd. Vs. commissioner of Income Tax and another, 2012 (348) ITR 306. Attention of the Court is invited to Section 271 (1)(c) of Income Tax Act to contend that imposition of penalty in similar circumstances was not approved by the Apex Court. Relevant portion of the order of the Apex Court, relied upon for the purposes is extracted hereinafter:- "Against the order of the Tribunal, the assessee approached the Calcutta High Court which dismissed its appeal filed under Section 260-A of the Act by the impugned order. The only reason given by the High Court for dismissing the appeal reads as under: "After analysing the facts of this case, considering the submissions made by the learned Advocates for the parties and the materials placed before us, we cannot brush aside the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the Tax Audit Report and the return of income. Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a silly mistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, be deemed to represent the income in respect of which particulars have been concealed." 10. Under the provision of the Income Tax Act, penalty is leviable if the assessing authority is satisfied that any person has concealed the particulars of income or furnished inaccurate particulars of such income. It is for such reason that penalty becomes payable. In the facts of the case their lordships of the Supreme Court found that there was no deliberate concealment of particulars of income or furnishing inaccurate particulars by the assessee. The intent on part of the assessee was read into the provisions itself, inasmuch as it is only when particulars of income is concealed or the particulars furnished was inaccurate that the provision itself got attracted. Since it was found that there was inadvertent error which occasioned submission of wrong return that the Supreme Court interfered with the imposition of penalty. 11. The facts of the present case, however, are quite distinct. Section 34 deals with deposit of tax deducted at source. It is admitted that the assessee had deducted tax at source in December, 2011 itself. By operation of law, such amount was liable to have been dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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