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TMI Blog2019 (6) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... tement (reference) of the TDS in the prescribed form within time prescribed U/s 206 of the Act. As there was a delay in filing the return, the A.O. levied penalty of Rs. 43,248/- U/s 272A(2)(k) of the Act considering the delay in each quarter. 3. By the impugned order, the ld CIT(A) confirmed the action of the A.O. against which, the assessee is in further appeal before the ITAT. 4. It was argued by the ld AR that the assessee had deducted the TDS and also deposited the same in to the account of Central Govt. with interest also. This is the admitted facts and not disputed. Accordingly, the requirement of the TDS return filling is to ensure that the assessee whether deducted correct tax or not or after deducting the same whether paid or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd penalized. Otherwise no assessee or person wants extra burden of interest. 5. Reliance was placed on the decision of ITAT Jaipur Bench in the case of Argus Golden Trades India Ltd V/s JCIT 189 TTJ 589(Jp) wherein it was held that: Penalty U/s 272A(2)(K)-Delay in filing e-TDS return within stipulated time-AO imposed penalty U/s 272A(2)(K) holding that assessee company had delayed in filing quarterly e-TDS return within stipulated time-CIT (A) upheld levy of penalty and observed that delay was not of one or two days but there was delay of 1024 days, hence, it revealed willful attempt for non-compliance of statutory provisions-Held, penalty had been levied u/s 272A(2)(K) which talked about failure to deliver copy of statement within time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its obligation. The Supreme Court has further laid down that penalty will not be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority and is to be exercised judiciously and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed the authority competent to impose the penalty, will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." The assessee in any case entertained a bonafide belief that the TDS re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty under s. 272A(2)(c) appears to be to put pressure on the thoughtless and inefficient officers to perform their duty punctually in the public interest, but a tax authority cannot inflict penalty in thoughtless or routine manner. The legislature may create an offence of a strict liability where mens rea is wholly or partly not necessary. The question whether the offence involves the existence of mens rea as an essential element of it or whether the statute dispenses with it and creates strict liability, are questions which have to be answered on a true construction of the statute. The penalty under s. 272A(2)(c) cannot be levied in a routine manner. The discretion vested with the authority is to be exercised judiciously on consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derive any benefit whatsoever by not filing the quarterly TDS statements in time as the amount of TDS was duly deposited in the Government treasury within the prescribed time-No penalty under s. 272A(2)(k) can be validly imposed." 10. Similar view has been taken by the ITAT Ahmadabad Bench in the case of ITO TDS Vs. The Oriental Insurance Company Vs Department of Income Tax in ITA No. 2906/Ahd/2009 order dated 14/09/2011. 11. Keeping in view the totality of facts and circumstances and applying the proposition of law as discussed above, we do not find any merit in the penalty so imposed, accordingly, we direct the A.O. to delete the same. 12. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 31st Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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