9911796707
TMI Blog2017 (6) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... and observed that the delay was not of one or two days but there was delay of 1024 days, hence, it reveals a wilfull attempt for non compliance of statutory provisions. In the provisions of section 272A(2)(K), the word "shall" is mentioned indicating that if there is violation of these provisions, the imposition of penalty is mandatory. As per section 273B, penalty may not be imposed if the assessee proves that there was a reasonable cause for such failure. The assessee was not having any genuine ground or the compelling circumstances for not filing of TDS return in time. The statutory provisions were introduced so that the deductee can take credit for the taxes it has already paid. Against the order of ld CIT(A), the assessee is in appeal before us. 4. During the course of hearing, the ld. AR submitted that ld. CIT(A) at page 3 & 4 of her order has correctly held that in FY 2010-11, there was a change in filing of e-TDS Return. In this regard, it is submitted that CBDT vide notification dated 31.5.2010 had notified changes in data structure and validations for filing e-TDS statement for FY 2010-11. Out of many changes, one of the change was that 100% vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arter ( In form No.26Q) Amount of TDS deduction Due date of TDS deposition Date on which TDS deposited 1 April-June 1,64,651.- 07th of the following month 26.07.2010 07.08.2010 2 July-Sep 4,28,232.- 07th of the following month 07.10.2010 16.11.2010 3 Oct-Dec 17,497.- 07th of the following month 10.01.2011 4 Jan-March 5,550.- 07th of the following month 25.05.2011 4.4 It was further submitted ld. CIT(A) erred in observing that the assessee was not having any genuine ground or the compelling circumstances for not filing of TDS Return in time. Practically it is a difficult task to arrange the PAN of so many deductees who are scattered throughout the county. Therefore the same should have been accepted as reasonable cause. In this regard, the attention is drawn towards the decision of Hon'ble ITAT Jaipur Bench in the case of Shri Ganesham Electronics vs. ACIT (TDS) ITA No. 181/JP/2014 wherein non availability of PAN was acknowledged and treated as reasonable cause. The relevant extract is set out here for the sake convenience. "..2.1 I have heard the rival contentions and perused the materials available on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time. In our view, the assessee has satisfactorily explained the reasons regarding non filing of TDS returns in time, therefore, no penalty should be levied in these cases. Even otherwise also, the assessee did not derive any benefit whatsoever by not filing the e-TDS returns in time, as the amount of TDS was duly deposited in the government treasury within prescribed time. Such delay has not caused any loss to the Revenue/Income Tax Department" B) CIT Branch Manager (TDS), UCO Bank vs. ACIT [2013] 35 taxmann.com 45 (Cuttack - Trib.): "Head note - Section 272A of the Income-tax Act, 1961 - Penalty - For failure to answer question, sign statements, furnish returns or statements, etc. [Reasonable cause] - Assessment year 2009-10 - Assessee-bank failed to file return of tax deducted at source within specified time - It was explained that due to shortage of staff and heavy pressure of work then managers were unable to file return within due date - It was also explained that due to lack of information of PAN of deductees, filing of return was delayed - Assistant Commissioner, however, rejected explanation of assessee and imposed penalty under section 272A(2)(k) - Whether since ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the department on the specified date does not hold good. The deductees were well aware of the fact that until PAN is provided to the assessee the TDS return cannot be filed by the assessee and consequently TDS credit cannot be claimed. The contention of AO that the deductees are stressed has no merit because they themselves were preventing the assessee to file the TDS return in time. Needless to mention that instead of deductees being stressed the Ld. AO should mention the deductor was stressed because of that repetitive efforts made by him to collect the PAN from the deductee. 4.7 The Ld. AO as well as ld. CIT(A) misplaced their reliance on the following judicial pronouncements, because the facts of the cases relied upon and the facts of the assessee's case are different as submitted below: S. No Facts of Shah Traders v. DCIT(Patna Bench) [1996] 56 ITD 33 (PAT.) Case of Assessee 1. Penalty u/s 272A(2)(c) Penalty u/s 272A(2)(k) 2. In the case return was not furnished even after issuing show cause notice. In the case return was furnished before issuing show cause notice. 3. The assessee further did not file return till the date of penalty order. The assessee filed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to section 206C (3) of the Act. In the instant case, there is no such factual situation before us rather there is a delay in filing of quarterly e-TDS returns which is covered under the provisions of section 272A(2)(C) of the Act. Hence, on this ground itself, where the Assessing Officer is not clear about basis of the charge, the levy of penalty cannot be sustained. 7. On merits, it is noted that during the financial year 2010-11 which is under consideration before us, there was a change which was brought about in filing of e-TDS returns wherein there was a necessity to mention 100% valid Permanent Account Numbers of the payee to whom the payment has been made and TDS done in such payment in the e-TDS return and thereafter only the e-TDS return can be validated and uploaded in the IT system. The same has been the position of the CBDT vide its notification dated 31.5.2010. The assessee has submitted that since there were large number of deductees scattered throughout the country, a fact not disputed by the Revenue, it took them some time to collect the PANs of these deductees and thereafter, it was able to upload the e-TDS returns in the IT system maintained by the&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
