M/S GURUASHISH CONSTRUCTION PVT LTD.,MUMBAI vs. JOINT CIT TDS 1(2), MUMBAI

आदेश / O R D E R PER M. BALAGANESH (A.M):

M/s. Guruashish Construction Pvt. Ltd.,

Sr. No. Quarter Type Due date Actual date Delay in of Filing of filing number of days 1 26Q Other than salary 15/07/2011 09/01/2015 1273 2 26Q Other than salary 15/10/2011 04/04/2015 1176 26Q Other than salary 3 15/01/2012 28/05/2015 1228 4 26Q Other than salary 15/05/2012 05/01/2016 1330 Total 5007 3.1. For the aforesaid delay, the ld. AO proceeded to levy penalty @100/- per day in terms of Section 272A(2)(k) of the Act and accordingly, arrived at the penalty amount of Rs.500,700/-. This levy of penalty was upheld by the ld. CIT(A) on the ground that assessee had not offered any reasonable cause for delay in filing of TDS statements u/s. 200(3) of the Act.

3.2. We find that assessee is engaged in the business of real estate development. A survey action u/s.133A of the Act was conducted in its premises on 10/02/2014, pursuant to which, the TDS defaults to the tune

M/s. Guruashish Construction Pvt. Ltd., of Rs.2,31,71,365/- was detected leading to the commencement of proceedings u/s.201(1) / 201(1A) of the Act. The assessee had submitted that it had not claimed any tax deduction of expenditure on which TDS default had occurred. It had also submitted that the majority of said default related to interest payments made to an entity identified as IL & FS which had already accounted for the said interest receipts in its return. The assessee also stated that it had paid the balance amount of tax in default amounting to Rs.70,27,550/- prior to the date of commencement of the present penalty proceedings. The assessee submitted that since the tax deducted was not paid in time, the TDS statements could not be filed electronically. According to assessee, the same constituted reasonable cause within the meaning of section 273B of the Act and hence there cannot be any levy of penalty u/s. 272A(2)(k) on it. Admittedly, we find that assessee had duly deducted the tax at source and had also remitted the same, of course with some delay, for which it had already been penalised with interest as per the Act. The interest u/s. 201(1A) of the Act had also been paid by the assessee. Admittedly, the assessee had indeed filed its TDS statements u/s.200(3) of the Act beyond prescribed time. But we find that there is absolutely no loss to the exchequer pursuant to the said delay as the entire taxes that were due to the Government had already been duly remitted by the assessee. Hence, the default committed by the assessee is only a minor technical and venial breach. It is settled law that no penalty could be levied on an assessee for a mere technical venial breach, more especially when there is no loss caused to the exchequer due to such breach.

3.3. In view of the same, we have no hesitation in directing the ld. AO to delete the penalty levied u/s. 272A(2)(k) in the facts and circumstances

M/s. Guruashish Construction Pvt. Ltd., of the instant case. Accordingly, the grounds raised by the assessee are allowed.

Order pronounced on 11/06/2021 by way of proper mentioning in the notice board.