TaxTMI 
TaxTMI 
2017 (4) TMI 878
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....as, for any failure to deposit tax deducted at source, penalty is leviable under sub-section (8). The provisions in that regard are reproduced:- "(1) Without prejudice to any other mode of recovery, payment or collection of tax under this Act, the State Government may, by notification in the Gazette, direct that, in a specified case and in the specified circumstances but subject to such conditions as may be specified, every specified person responsible for making payment to the selling dealer, for discharge of liability on account of valuable consideration payable on sale of goods in such cases as may be specified, shall, at the time of making such payment to the seller, either by credit or in cash or in any other manner, towards satisfaction of tax payable by the dealer on account of sale of any taxable goods, deduct an amount determined in the manner specified: PROVIDED that where in case of a works contract, the contractor has awarded a sub-contract and the notification provides for deduction of amount by the contractee from the payments made to contractor, the contractor responsible for making any payment or discharge of any liability to any sub-contractor, in....
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....assessee. The authorities under the act also imposed penalty to the extent of twice the amount of delayed deposit of tax. Such imposition of penalty, however, has been set aside by the Tribunal, noticing the fact that revenue was not adversely affected since interest upon such delayed amount has been deposited. Para 8 and 9 of the Tribunal's order which notices reasons for quashing penalty, reads as under:- "8(1). Section 54 (1)(1)(a) of the U.P. Value Added Tax Act, 2008 and Section 34(8) of the U.P. Value Added Tax Act, 2008 are two provisions which prescribe imposition of penalty in case any dealer fails to deposit the tax within the time prescribed by the act. Neither Section 54 (1)(1)(a) nor Section 34 (8) of the U.P. Value Added Tax act, 2008 provides any time limit for the assessee to deposit the admitted tax or tax deducted at source along-with interest thereon for the period by which the deposition of tax was delayed and after which the assessing officer will have no option left but to inflict a penalty upon the assessee notwithstanding that the assessee has deposited the admitted tax along-with interest thereon. Penalty under Section 54 (1)(1)(a) and also und....
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....ed hereinafter:- "Present revision has been filed by the department under section 11 of the U.P. Trade Tax Act, 1948, against the judgment and order dated 03.01.2008 passed by the U.P. Trade Tax Tribunal, Lucknow in Second Appeal No.218 of 2006, for the assessment year 2000-2001, where the penalty under section 8-D(6) was cancelled. Heard Sri Sanjeev Sankhdhar, learned counsel for the department and Sri Sudeep Seth, learned counsel for the assessee. After hearing both the parties, it appears that for the month of November 2000 and March 2001, the TDS was not deducted by the petitioner. So, the A.O. has levied the penalty under section 8-D(6) of the Trade Tax Act, vide order dated 19.07.2004. The same was upheld by the first appellate authority. However, the Tribunal vide its impugned order has cancelled the penalty. From the record, it appears that the petitioner had deposited the TDS alongwith interest for the delay. Thus, there was no loss to the revenue. When the TDS was deposited alongwith interest and there was no loss to the revenue, then there was no justification for levy of the penalty. There was no malafide intention on the part of the ....
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....rt of the revisionist to deduct tax. Consequently, the provisions of sub-section (6) stood attracted and the levy of penalty, therefore, followed and was in fact a necessary corollary." 6. It is, therefore, contended that the Tribunal has erred in interfering with the imposition of penalty for the reasons disclosed therein. 7. Sri Praveen Kumar appearing for assessee, has placed reliance upon the order of the Lucknow Bench of this Court in Commissioner Commercial Tax (Supra). Reliance is also placed upon judgement of Apex Court in Price Waterhouse Coopers Pvt. Ltd. Vs. commissioner of Income Tax and another, 2012 (348) ITR 306. Attention of the Court is invited to Section 271 (1)(c) of Income Tax Act to contend that imposition of penalty in similar circumstances was not approved by the Apex Court. Relevant portion of the order of the Apex Court, relied upon for the purposes is extracted hereinafter:- "Against the order of the Tribunal, the assessee approached the Calcutta High Court which dismissed its appeal filed under Section 260-A of the Act by the impugned order. The only reason given by the High Court for dismissing the appeal reads as under: "After an....
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....t is further stated in the affidavit that the return was signed by a director of the assessee who proceeded on the basis that the return was correctly drawn up and so did not notice the discrepancy between the Tax Audit Report and the return of income. Having heard learned counsel for the parties, we are of the view that the facts of the case are rather peculiar and somewhat unique. The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a silly mistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court. The fact that the Tax Audit Report was filed along with the return and that it unequivocally stated that the provision for payment was not allowable under Section 40A(7) of the Act indicates that the assessee made a computation error in its return of income. Apart from the fact that the assessee did not notice the error, it was not even noticed even by the Assessing Officer who framed the assessment order. In that sense, even the Assessing Officer seems to have made a mistake in overlooking the contents of the Tax Audit Report. ....
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....e facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." 10. Under the provision of the Income Tax Act, penalty is leviable if the assessing authority is satisfied that any person has concealed the particulars of income or furnished inaccurate particulars of such income. It is for such reason that penalty becomes payable. In the facts of the case their lordships of the Supreme Court found that there was no deliberate concealment of particulars of income or furnishing inaccurate particulars by the assessee. The intent on part of the assessee was read into the provisions itself, inasmuch as it is only when particulars of income is concealed or the particulars furnished was inaccurate that the provision itself got attracted. Since it was found that there was inadvertent error which occasioned submission of wrong return that the Supreme Court interfered with the imposition of penalty. ....