AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 122
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....(k) by Additional Commissioner of Income Tax, TDS Range, Ahmedabad. 3. The brief facts of the case are that the assessee company was engaged in the business of laying of cross country pipelines and operating solar power plants. A survey was carried out at the business premises of assessee on 13.11.2013 and it was found by survey team that assessee was not filing quarterly statement in Form No.27EQ for the F.Y. 2008-09 on the due dates and therefore, the A.O. came to the conclusion that the assessee was liable for penalty u/s.272A(2)(k) of the Act. The assessee was issued show cause notice dated 21.01.2014 which was not replied to by the assessee and therefore, the ld. A.O. levied the penalty by observing that as per the provision of Section 273B, there is no scope for considering any reasonable cause for failure to file statement in time, since, Section 273B excludes the penalty u/s.272A(2)(k) of the Act. The A.O. calculated the defaults 5204 days and imposed penalty @ 100/- per day total amounting to Rs. 5,20,400/- as mentioned in para 3 of the penalty order. 4. Ld. CIT(A) confirmed the penalty by holding that the assessee was rightly declared "assessee in default" by the A.O.. ....
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....ssessee did not collect the TCS and thus, the same was paid out of assessee's own pocket with interest and therefore, the order u/s.206C(6A) and 206C(7) were to be passed. Reliance was placed on the judgment of Hon'ble Gujarat High Court in case of Harsiddh Construction Pvt. Ltd. vs. CIT 244 ITR 417 (Guj.), which was followed by the Jurisdictional Ahmedabad ITAT in ACIT vs. Lok Prakashan Ltd. in ITA No. 2815/Ahd/2009 by following the judgment of Hon'ble Apex Court in the case of Motilal Padampat Sugar Mills 118 ITR 326 & Harsiddh Construction Pvt. Ltd. (Supra) as well as Hindustan Steel Ltd. 83 ITR 26 (SC). & (iii). Ld. A.R. also made alternate submission that the penalty u/s.272A(2)(k) could not exceed the amount of tax collectible on the scrap sale and on this score the penalty was wrongly levied to the tune of Rs. 5,20,400/- whereas it cannot exceed the actual TCS due i.e. Rs. 2,388/-. The ld. Counsel for the assessee strongly placed reliance on the Tribunal's judgments in ITA No.5556 & 5557/Mum/2009, A.Y. 06-07 & 07-08 and also in ITA No. 2815/Ahd/2009, A.Y. 07-08. 6. The ld. D.R., on the other hand, relied on the orders of authorities below. 7. We have heard the rival submis....
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....usal of the above provisions of Section 271A(2)(k) reveals that a penalty under this section can only be imposed if a person fails to deliver or cause to be delivered a copy of statement in Form No.27EQ within the time specified in sub-section 3 of the Section 200 or proviso to sub-section 3 of Section 206C. The proviso to sub-section 3 of Section 206C provides for collection of tax on or after 01.04.2005 as per the provision of Section 206C and after collection pay the same to the credit of Central Government within the prescribed time and prepare statement in Form No.27EQ and deliver or caused to be deliver to the prescribed Income Tax Authority or person authorized by such authority on or before 15th day of next month after the close of the quarter for the first three quarter ending on 30th June, 30th September, 31st December and 15th May for the last quarter ending on 31st March. We find that the assessee was not aware of the provision of TCS on sale of scrap and came to know only upon survey by the department. We also note that immediately thereafter the assessee deposited amount of TCS alongwith interest. We are of the considered view that the penalty cannot be levied under t....
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.... (No.2) Act, 2004 w.e.f. 1-4-2005. We find that Revenue could not bring any material before us to controvert the above finding of the Learned Commissioner of Income -tax (Appeals) and to show that the assessee was earlier aware of this requirement of law. Further, on the facts of the case that the assessee has paid the tax within the prescribed time, itself shows that ordinarlily there would not be any benefit to the assessee for which it would deliberately delay the submission of the quarterly statements. Further, the contention of the Revenue that ignorance of law cannot be an excuse is found to be unacceptable in view of the decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. vs. State of U.P. (1979) 118 ITR 326 (SC) wherein it was held that there is no presumption in this country that every person knows the law and it would be contrary to common sense and reason if it were so. It was also stated that "it is impossible to know all the statutory law, and not very possible to know all the common law". Further, the Hon'ble Madras High Court in the case of CIT vs. K P V S Mohammad Rowther & Co. 232 ITR 176 (Mad) held as under: "Ignorance of l....
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....s well and as a result, the appeal of the assessee is allowed by deleting the penalty of Rs. 1,45,600/-. The A.O. is directed accordingly. ITA No.2486/Mum/2015 for A.Y. 2008-09 10. In A.Y. 2008-09 assessee has raised following ground: "1. The learned Additional Commissioner of Income Tax, TDS Range, Ahmedabad has erred in facts and on law in levying penalty of Rs. 25,272/- for A.Y. 2008-09- u/s.271CA of the I.T. Act." 11. The issue raised in the sole ground of appeal is against confirmation of penalty by CIT(A) levied u/s.271CA. 12. During the course of survey, it was found that TCS was not collected on the sale of scrap of Rs. 25,27,204/- and therefore, the DCIT, TDS Circle, Ahmedabad vide order dated 20.11.2013 passed u/s.206C(1) of the Act determined the demand at Rs. 25,272/- on account of default of TCS and proposed levy of penalty u/s.271CA vide letter dated 20.11.2013. The assessee was issued show cause notices dated 21.01.2014 and 08.07.2014, which were not replied by the assessee and therefore, the Addl. CIT levied the penalty of Rs. 25,272/- u/s/.271CA for failure to collect tax on sale of scrap. 13. The ld. CIT(A) confirmed the penalty by rejecting the submissio....