TaxTMI 
TaxTMI 
2015 (5) TMI 753
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.... the order of the Forum below is illegal, arbitrary, unjust and excessive in the facts and circumstances of the case. 02. For that the Learned Addl. CIT (TDS), Bhubaneswar has not afforded reasonable opportunity of hearing to the appellant but passed the order hastily on 19/03/2014 imposing penalty at Rs. 80,960/- for the Financial Year:-2009-10 relevant to the Assessment Year:-2009-10, which is not only arbitrary but also illegal, being violative of natural justice, hence the order passed is liable to be quashed. 03. For that the imposition of penalty is a quasi-criminal proceeding. The Forum below failed to establish that the appellant has not deliberately and consciously deposited the TDS amount in time, hence the order passed impo....
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....and the delay should have been condoned, but imposition of penalty without application of mind is illegal and liable to be cancelled. 04. For that the calculation of penalty U/S.272A (2)(k) has not been made properly, hence the order passed is liable to be quashed." 3. Short facts of the case are as under:- In both the cases, the assessee has filed the quarterly e-TDS statements in Form Nos. 24Q & 26Q for different quarters for the F.Y. 2009-10 & 2010-11. Since, there was no reasonable explanation for delay in filing 24Q/26Q statements, the JCIT (TDS) imposed the penalty u/s. 272A(2)(k) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act', for short). The total delay calculated by JCIT for all either quarterly ....
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....d. CIT(A) has partly allowed the appeals. Therefore, assessee is in appeal before u/s. 5. Learned AR submitted before u/s. that the issue stands covered by the decision of ITAT, Cuttack Bench in the case of Garrision Engineer (I) R & D Vs. ACIT (TDS) in I.T.A.No. 69/CTK/2013, therefore the penalty provisions cannot precede the consideration of reasonable cause u/s. 273B of the Act. Assessee had made technical default for not filing the quarterly statements pertaining to on time deduction of tax at source and on time submissions of TDS certificates to the deductees leading to no loss of revenue, therefore, penalty may be deleted. 6. On the other hand, learned DR relied upon the order of the Ld. CIT(A). 7. We have heard the contentio....
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....e assessee before us indicates that there is no less 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 assessee to e-file it on a particular date for calculating number of days the default c....
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....nt and the delay occurred only due to the reason that the assessee deductor is dependent on information of TDS and its deposit from the sub treasury of the Government and filing of e-return through the designated service provider of Income-tax Department. The assessee deductor has no technical competency to file the return by itself without external aid. The assessee is also not competent to do so by itself as per rule 37B and "Filing of Return of Tax deducted at source" scheme 2003, which requires the submission of quarterly statement through NSDL or other approved agencies i.e third party, not under the control of the assessees. There is neither any willful negligence nor any malafide on the part of the assessee in the matter of complianc....