TaxTMI 
TaxTMI 
TaxTMI 
2013 (11) TMI 205
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....of appeal before the CIT(A) may kindly be considered as a part of this grounds of appeal 5. That the taxes having been deposited the authorities below should have taken a liberal view as it is a quasi criminal proceeding and the question of mens rea is involved." 2. At the outset the learned Counsel for the assesses contended that the issue stands covered in favour of the assessee by various decisions of the Tribunal which have been brought on record for the consideration of penalty levied u/s.272(2)(k). He submitted that the assessee is a Nationalized Bank. In compliance to the show cause notice issued by the ACIT(TDS), the assessee stated as follows : "Ours is a rural branch and TDS filing is done by us through branch at Balasore. It is a distance place from Balasore. TDS is deposited on due date. We personally go and file TDS at Balasore. This is a very busy Branch and we have no adequate staff in comparison to the volume of business. Due to shortage of staff and heavy pressure of work, sometimes delay occurs in filing the E-TDS within the due date". More so, the PAN Nos of the deductees are not furnished by our business constituents / on whose behal....
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.... so much complicated with so many provisions that it is very difficult to understand even for a person professionally dealing with it. From bare reading of the penalty order, it is apparent that though the Learned Additional Commissioner of Income Tax (TDS), Bhubaneswar has mentioned that deductor's submission has been carefully considered but in fact he has not considered at all. It is settled law that the authority is duty bound to examine the points raised by the parties record definite conclusions of each one of them. It has to indicate reasons in support of its conclusions (A. Venkat Rao - Vrs- CIT 203 ITR 64 (Orissa). Not doing so, his order is illegal and has become a nullity. 4.1. He continued that the assessee the petitioner has already filed the default returns and therefore the matter has been regularized. The amount of TDS due has already been deposited with the Central Government Treasury account on due date. The learned Counsel for the assessee contended that it is a matter concerning a Nationalized Bank and nobody's personal affairs are involved. The non-compliance to the statutory obligation was not with any malafide intention or taint. Law is well settled that an ....
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....e law does not acknowledge such defaults insofar as the Rules for such e-filing was made in 2005 and the matter relating to the Finance Year 2008-09 ought to have been complied when the order for levy of penalty is dt. 6.1.2011. He fully supported the order of the learned CIT(A) confirming the penalty insofar as the learned CIT(A) has taken into consideration that the assesses could not be considered under the provisions of Section 273 as well on the facts and circumstances of the case. 6. We have heard the rival parties and perused the material available on record. On our careful consideration of the facts and circumstances of case as brought on record by the authorities below, we are inclined to find that the penalty has been levied unilaterally by the ACIT(TDS) on the proposal of the ITO (TDS), Balasore who has not bothered to find out whether the banks are to file such statements insofar as he has computed the penalty @Rs.100 per day whether was equal to or more than the tax deducted at source which amount was to be penalized in accordance with the provisions of the said Section. The learned Counsel for the assesses before us has produced the purported statements filed u/s.200....
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....Rs.100 per day as have been put forth by the Assessing Officer and confirmed by the learned CIT(A) indicating that the provisions of such default is liberal to the extent that the amount so deducted and credited to the Government account was not to be more than the penalty so levied. This clearly indicates that the case-laws as submitted by the learned Counsel of the assessees before us indicates that there is no loss to the Revenue for attracting or levy of such penalty. ITAT, Cuttack Bench, in the case cited above, had clearly, held that once the amount is deducted by identifying the deductee it was on the basis of obtaining the PAN of the deductee without which the information could not be uploaded in the electronic media which software was only available to the franchisees outsourced by the Department or the NSDL being the apex Nodal Agency. The learned DR has insisted that the proviso to Rule 31-A of the I.T.Rules clearly indicate that the penalty was ripe for levy not because the insistence of the Department on respective assessees to e-file it on a particular date for calculating number of days the default continues. We are unable to consider the proposition of the learned D....
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....e breach flows from a bonafide belief that the assesses is not liable to act in the manner prescribed by the statute. The penalty u/s 272(A)(2) cannot be levied in a routine manner. Law is well settled that a bonafide breach cannot lead to a penalty u/s. 272(A) [Hindustan Steel Ltd. Vrs. State of Orissa (1972) 83 ITR 26 (SC)].. In the present case of the respective assessees either Government bodies or aided by Govt., are public office and since the tax deduction and payment are made by treasury and there is undisputedly no default. There arises no reason for non-filing of TDS return with an intentional act or willful act to attract a quasi-criminal, imposition of penalty. The assessees have relied on the decisions of the honorable High Court of Rajsthan in the case of CIT Vrs. Superintendent Engineer [2002] 177 CTR (Raj) 586 and the decision of ITAT, Mumbai Bench in the case of Royal Metal Printers Pvt. Ltd. Vrs. Asst CIT [2010] 37 SOT 139(Mum) and the decision of ITAT, Cuttack Bench in the case of Garrision Engineer (I) R & D, Chandipur, Balasore Vrs. The Addl. Commissioner of Income Tax (TDS), Bhubaneswar (supra), wherein it has been clearly held that for such technical or venia....