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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश आदेश / ORDER आदेश आदेश
PER D. KARUNAKARA RAO, AM :
This appeal is filed by the assessee against the order of CIT(A)-10, Pune, dated 29-03-2016 for the Assessment Year 2011-12.
The grounds raised by the assessee are extracted as under:
“1. CIT(A) erred in confirming the Penalty u/s.272(2)(k) levied by the Assessing Officer. 2. Appellant prays for just and equitable relief. 3. Appellant prays to add, alter, amend and/or withdraw the ground, submit evidence/additional evidence during appeal proceedings.”
Briefly stated relevant facts are that the assessee is an academy and filed e-TDS returns in Form No.26Q for the first quarter of the F.Y. 2010-11 on 22-09-2011 against the due date of 15-07-2010 with the
delay of 434 days. Accordingly, as per Para No.6 of the assessment
order, penalty of Rs.43,400/- was levied u/s.272(2)(k)/274 r.w.s. 200(3)
of the I.T. Act. The said Para No.6 reads as follows :
“6. It is, therefore, presumed that the deductor assessee has nothing more to say in the matter. Since the deductor assessee has not established any reasonable cause for delay in filing e-TDS return in Form-26Q for Ist Quarter of F.Y. 2010-11, I am satisfied that this is a fit case for levy of penalty under section 272A(2)(k)/274 r.w.s. 200(3) of the I.T. Act, 1961. As per the provisions of 272A(2)(k)/274 r.w.s. 200(3), the deductor assessee is liable for penalty of Rs.100/- per day for the period of delay in submission of Form No.26Q. Therefore, for delay of 434 days in filing e-TDS return for Ist quarter, penalty of Rs.100/- per day totaling to Rs.43,400/- is hereby levied u/s. 272A(2)(k)/274 r.w.s. 200(3) of the I.T. Act, 1961.”
During the First Appellate proceedings, assessee made a written
submission and the same reads as follows :
“(i) Additional CIT(TDS) has levied penalty of Rs.43,400/- under above section for delay in filing form/return of TDS.
(ii) It will be seen from enclosed Chart that TDS is deposited on 20/09/2011, and return is filed on 22/09/2011 unless the payment of TDS is made, and date of payment column of return is filed in return does not get uploaded.
(iii) Delay in filing return is because of delay in depositing Tax, which is reasonable cause for delay. Therefore, no penalty can be levied.
(iv) Non-Communication of PAN and TAN etc. by entities whole TDS is deduction and to be paid also is a problem. If the PAN is not communicated by the person/concern, deductor cannot do anything, except requesting him.
(v) We rely on the Cuttak Bench (ITAT) decision in case of N.K. Media Ventures P. Ltd. (59 Taxmann.com 365) or 154 ITD 537.
(vi) Return could only be filed only after the payment of taxes to Government; Penalty had been levied only for delay from date of paying taxes to the Government.”
On considering the said submissions, the CIT(A) dismissed the
appeal of the assessee and confirmed the said penalty of Rs.43,400/-
levied u/s.272A(2)(k) of the Act. In the process, CIT(A) dismissed the
assessee’s submission as well as the reasonable cause made out by the
assessee. Before the First Appellate Authority, it is the case of the
assessee that delay in depositing the tax constitutes a reasonable cause
for delay.
Before us too, it is the case of the assessee that similar issue
came up for adjudication before the Tribunal in the case of Nav
Maharashtra Vidyalaya and 38 others vide ITA No. 832/PN/2016 and
others dated 07-10-2016 for the A.Y.2011-12 and the issue stands
covered. Ld. AR for the assessee requested for applying the said legal
proposition to the case of the assessee.
Ld. DR for the Revenue relied on the orders of the AO/CIT(A).
We heard both the sides and perused the orders of the Revenue
and the order of the Tribunal (supra) relied upon by the assessee. We
find the Tribunal vide the finding given in Para No.28 has already taken
a view in this matter and therefore, we find it relevant to extract the
same for the sake of completeness of this order as under :
“28. . . . . . . . .The onus was upon the authorities to provide platform for easy compliance to newly introduced provisions of the Act. Where such facilities could not be provided by the authorities and the technical support not being available to small assessees, who are in appeal before us, then the delay in furnishing the e-TDS returns late should be liberally construed. Hence, there was practical difficulty on the part of assessee to comply with newly introduced requirement of e-TDS filing of TDS statements, being technical delay and not venial in nature, merits to be considered as reasonable cause for non levy of penalty as per the requirements of section 273B of the Act. We hold so. In this bunch of appeals, there are cases where the assessee has defaulted in not depositing tax deducted at source in time, in such cases, the returns were delayed because of default on behalf of the deductor. In such cases, penalty under section 272A(2)(k) of the Act is leviable. However, the same is to be restricted from the date of payment of TDS to the date of filing e-TDS statements since e-TDS statements cannot be filed without payment of TDS to the credit of Central Government. Similar ratio has been laid down by the Chandigarh Bench of Tribunal in M/s. Ashirwad Complex Vs. JCIT (TDS) (supra). Accordingly, we hold so.”
The above extract suggests that not depositing the tax deducted
at source in time constitutes a reasonable cause so far as the delay in
filing of the quarterly e-TDS returns is concerned. However, the
Tribunal gave a finding that penalty u/s.272A(2)(k) of the Act should be
calculated from the date of payment of TDS to the date of filing of e-TDS
statements since e-TDS statements cannot be filed without payment of
TDS to the credit of the Central Government. For filing the e-TDS
returns, the requirement of remitting the tax to Government account is
a must. With similar directions, we remand this issue to the file of AO
for recomputing the penalty in accordance with the directions given by
the Tribunal (supra). Accordingly, the grounds raised by the assessee
are partly allowed.
In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on this 09th day of March, 2018.
Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) �याियक �याियक सद�य �याियक �याियक सद�य सद�य /JUDICIAL MEMBER लेखा सद�य लेखा लेखा सद�य लेखा सद�य सद�य / ACCOUNTANT MEMBER सद�य
पुणे Pune; �दनांक Dated : 09th March, 2018 सतीश आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : अ�ेिषत
अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. 3. The CIT(A)-10, Pune 4. CIT-10, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B Bench” Pune; 5. गाड� फाईल / Guard file. 6. आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार
स�यािपत �ित //True Copy// //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune