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TMI Blog2021 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Income Tax Act prescribe different penalties for non-deduction as well as the delay in remittance of the amount to the Central Government. It is trite law that the two different penalties cannot be imposed by the Parliament for the same offence. We are of the considered opinion that the levy of penalty u/s. 272A(2)(k) of the Act is not justified in the present facts of the case. According we set-aside the impugned order and directed to delete the penalty. - Decided in favour of assessee. - ITA No. 2899/PUN/2017 - - - Dated:- 20-1-2021 - Inturi Rama Rao , Member ( A ) And S. S. Viswanethra Ravi , Member ( J ) For the Appellant : S. N. Puranik For the Respondents : Sudhendu Das ORDER Per Inturi Rama Rao, AM This is an appeal filed by the assessee directed against the order of the ld. Commissioner of Income Tax (Appeals)- 1, Aurangabad ('the CIT(A)' for short) dated 24.10.2017 confirmed the levy of penalty u/s. 272A(2)(k) of the Income Tax Act, 1961 ('the Act' for short) for the assessment year 2012-13. 2. Briefly, the facts of the case are that during the course of verification of authority to quarterly submission of prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be levied from the date of deduction of TDS but from the date of remittance of TDS amount to the credit of the Central Government account. It is further contended that no reasonable opportunity was given by the TDS authorities and since there was no loss of revenue and delay in preparation and delivery of the prescribed returns is not intentional, it is mere of technical breach of law. Thus, it was argued that the penalty should be deleted. However, no personal appearance was made before the ld. CIT(A), the ld. CIT(A) after granting of four opportunities had proceeded to dispose the matter and dismissed the appeal by holding that there was no reasonable cause for the delay in preparation and delivery of the prescribed returns to the prescribed authorities and accordingly confirmed the penalty. 5. Being aggrieved by the above decision of the ld. CIT(A), the appellant is before us in the present appeal. 6. Before us, the ld. AR for the appellant contended that the penalty can be levied only in respect of the delay from the date of payment of TDS not from the date of deduction of the TDS. 7. On the other hand, ld. CIT-DR filed a letter from the Income Tax Officer (TDS), Auran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso to sub-section (3) of section 206C of the Act. In the present case, we are concerned about the failure envisaged under sub-section (3) of section 200 of the Act. For better understanding of the issue on hand, it is relevant to extract the provisions of sub-section (1) and sub-section (3) of section 200 of the Act, which read as under:- Duty of person deducting tax. 200. (1) Any person deducting any sum in accordance with the foregoing provisions of this Chapter shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs. ......... (3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this Chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax deducted 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 authorised by such authority such statement in such form and verified in such manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Government on 01.08.2012 and the prescribed returns were filed on 22.08.2012. The provisions of Sub-Rule (2) of Rule 31A of the Rules prescribed that the statement of deduction of tax shall be furnished by last day of succeeding month of preceding quarter. For better understanding, the relevant Rules are extracted as under:- [Statement of deduction of tax under sub-section (3) of section 200. 31A. (1) ........ [(2) Statements referred to in sub-rule (1) for the quarter of the financial year ending with the date specified in column (2) of the Table below shall be furnished by the due date specified in the corresponding entry in column (3) of the said Table: Table Sl. No. Date of ending of quarter of financial year Due date (1) (2) (3) 1. 30th June 31st July of the financial year 2. 30th September 31st October of the financial year 3. 31st December 31st January o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate to the effect that tax has been deducted within the given period or for violation of any other specific conditions prescribed therein, he would render himself open for imposition of penalty for non-compliance of the aforesaid provisions of s. 203. 13. Likewise under s. 206, if the tax is deducted at source, the prescribed person who is responsible for deducting the tax, has to furnish the prescribed returns to the prescribed IT authority within the prescribed time and failure in doing so or non-compliance of any other conditions of the provisions of s. 206 would attract the penal provisions of imposition of penalty. 14. Sec. 206 has the heading 'Persons deducting tax to furnish prescribed returns', which means that the provisions contained therein are applicable to the persons making deduction of the tax. The person responsible for deducting tax would consequently mean the person who has actually deducted the tax. The said provision, therefore, cannot be made applicable in a case where the tax has not been deducted at source. 15. The aforesaid two provisions, thus, would become applicable only if the tax is deducted at source by the person concerned and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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