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TMI Blog2020 (10) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial year 2009-10. These losses continued to pile up for the subsequent financial years also. Due to this assessee company could not pay TDS on time. The e-TDS statement u/s 200(3) of the Act can only be filed after paying the taxes to the Central Government. Quarterly return of the TDS requires filling of date relating to payment of taxes. Therefore, such returns could be filed only after paying the tax to the Central Government account - Default in non-paying the taxes to the Central Government account in time or for non-deducting the tax at source, there are other provisions for ensuring compliance. In case the assessee fails to deduct tax at source or after deducting fails to pay the same to the Central Government account, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 272A(2)(k) of the Income-tax Act,1961 ['the Act' for short]. 3. Brief facts of the case are as follows: Assessee has deducted tax at source for the assessment years 2010-11 2012-13. However, there was a delay in furnishing quarterly returns/statements. The details of belated furnished quarterly statements for the assessment years 2010-11 2012-13 are as follows: For A.Y. 2010-11: RRR Number Form Num Periodicity Due Date Date of filing Delay (Days) 60510100329615 24Q Q4 15/06/10 29/10/10 136 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60510100513225 26Q Q4 15/05/12 09/07/12 55 4. For the above contravention of provision of section 200(3) of the Act, penalty u/s 272A(2)(k) of the Act was imposed by Jt. CIT(TDS) amounting to ₹ 1,28,900/- and ₹ 90,300/- for assessment years 2010-11 2012-13 respectively. The Jt. CIT (TDS) by referring to the judgement of the Hon ble Delhi High Court in the case of Court on its own motion Vs. CIT reported in 210 Taxman 452 (Delhi) held that non-furnishing of prescribed statement u/s 200(3) of the Act within the due date is not a venial breach of provision because the tax payer credit for the TDS statements cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificates produced by them before the A.Os and, on the other, the AOs are unable to give credit in the absence of corroborating evidence in the statutory forms viz. 24Q and 26Q as also due to failure of the deductors to upload the relevant data in the computer system. It is in this context the decision of the Hon ble High Court of Delhi in Court on its own Motion v. CIT referred to at para 3.2 supra becomes most relevant as the inability on the part of the AOs dealing with the claims of deductees led to the Hon ble High Court passing strictures. It is in the light of these difficulties that the penalty levied as envisaged in the section is justifiable. Accordingly, I uphold the penalty of ₹ 1,28,900/- levied on the appellant by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to the Central Government the assessee is deemed to be in default under section 201(1) and is liable for penalty. The assessee is also liable to pay interest for the period of default till the payment of tax under section 201(1A). Therefore in our view the period for levying the penalty has to be counted from the date of payment of tax because the delay in filing the return till the date of payment of tax is already explained on the ground that the assessee could not pay the taxes for which separate penal provisions exist. The assessee has also explained the reasons for not paying the tax to the Central Government in time which was because of financial difficulties. The assessee has filed the copies of P L account and balance she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra). Accordingly, we hold so. 9. In the instant case, assessee was in acute shortage of money, as the real estate business was in recession and it had hit the cash flow of the assessee. Consequently, assessee incurred huge loss from financial year 2008-09 onwards. For the assessment year 2008-09, assessee had incurred a loss of ₹ 36.21 crores and ₹ 363.93 crores for the financial year 2009-10. These losses continued to pile up for the subsequent financial years also. Due to this assessee company could not pay TDS on time. The e-TDS statement u/s 200(3) of the Act can only be filed after paying the taxes to the Central Government. In other words, the quarterly return of the TDS requires filling of date relating to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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