TaxTMI 
TaxTMI 
2019 (1) TMI 339
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....rm 24Q and 26Q. The assessee has drawn our attention to page 2 of the CIT (A)'s order giving the details of the form 24Q and 26Q, alongwith the number of days delay in filing the return, which is as under : The AO had given show cause notice to the assessee for the delay in remittance of the TDS to the Government account and also the delay in filing the quarterly returns, in response to which, it was explained that the delay was owing to the financial problems faced by the company which resulted in delay in remitting the TDS amounts and filing the returns. The AO was not convinced with the explanation given by the assessee and hence imposed the penalty on the assessee, for all the impugned assessment years. The reasoning given by the AO was as under : In the deductor's case it is also noticed that the TDS amounts already deducted were not remitted within the prescribed time and the remittance to Central Government Account in some cases were delayed upto almost one year. In this connection it may be mentioned that a person who is responsible for making payments and deduction at source is acting in a fiduciary capacity as an agent of the revenue. The amount of tax deducted does....
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....and RS. 2.06 lakhs respectively. The above facts noticed from the P&L Accounts and Balance Sheets reveal that the appellant was in a sound financial condition to file the quarterly returns in time and also financial crisis cannot be said to be a reasonable cause for payment of TDS which is deducted on behalf of the government. Therefore, the above decisions on which reliance has been placed by the appellant are not applicable. Accordingly, the appeals on the above ground are dismissed. Further the CIT (A) had also considered the various submissions made by the assessee, as under : Penalty under section 272A(2)(k) could be levied only from the date of payment of tax as the statement under section 200(3) is required to be filed only after payment of tax to the Central Government. Having considered the submission, it is noticed from the perusal of clause (k) of sub-section (2) of section 272A that "if a person fails to deliver or cause to be delivered a copy of the statement within the time specified In subsection (3) of section 200 ..., he shall pay, by way of penalty, a sum of one hundred rupees for every day during which the failure continues". The sub-section (3) of section 20....
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....ed at the credit of the Central Government within the prescribed time, prepare such statements for such period as may be prescribed and del iver or cause to be del ivered to the prescribed income-tax authority or the person authorised by such authority sh statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed" Time limits for filing quarterly statements of TDS in terms of sub-section (3)of section 200 have been prescribed under sub-Rule (2) of Rule 31A. Sub-rule (2) of Rule 31A as existed upto 31.10.2011 reads as under :- "Statements referred to in sub-rule (1) for the quarter of the financial year ending with the date speci fied in column (2) of the Table below shall be furnished by the due date specified in the corresponding entry in column (3) of the said Table:- The above rule was substituted by the Income-tax (eighth amendment) Rules 2011 w.e.f. 01.11.2011 as under :- "(2) Statements referred to in sub-rule (1) for the quarter of the financial year ending with the date specified in column (2) of the Table below shall be furnished by - (iii) The due date specified in the corresponding entry in column ....
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....s the assessee has deducted the TDS but not deposited the same into the account of the Government and hence also committed default in not filing the returns in time. The present case is a case where assessee had deliberately retained the tax after deducting it, while working as an agent of the Government and had utilised it for a considerable period of time and Further delayed in not filing the returns as required under law. 06. We have heard the rival submissions, perused the record as also the case laws cited by both the parties. Under the scheme of Income-tax, there is an obligation on the part of the payer to deduct the tax at the time of making the payment to the payee. Undoubtedly the assessee has made payments on which tax was to be deducted. Admittedly there is no quarrel that the payment which is subjected to payment of TDS was paid by the assessee to the payee and subsequently the tax was belatedly deposited to the Government account. Assuming if the TDS was not to be deducted on the payment made by the assessee then whole of the payment along with tax was payable by the assessee to payee, In our view if there was no financial difficulty in making the 90% of the payment....
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....as the assessee had been making the payment belatedly along with interest. The payment of /Government use was not in a priority list of the assessee. Moreover once the assessee had deducted the tax from the consideration paid to the payee then it is an obligation on the part of the assessee to deposit the same to the account of the Government. The amount deducted by the assessee on behalf of the Government was in the capacity of a trustee and not depositing the amount in time with the Government was without any just and reasonable cause and cannot be permitted, Therefore the action of the AO/ CIT (A) for imposing the penalty is in accordance with law. 07. The case laws relied upon by the Ld. AR are not applicable to the facts of the case. The basic decision relied is in the matter of Global Ventures Inc (supra) of the Bangalore Tribunal, where in para 6, it is held as under : 6. We have heard the rival contentions, perused the material on record. The only issue in the present appeal is whether the penalty is leviable under the clause (k) of sub-section (2) of Section 272A of the Act having regard to the facts of the present case. Undisputedly, there is a delay in filing the pres....
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....opinion that the case on hand is not a fit case for levy of penalty u/s. 272A of the Act. The decisions relied on by the ld. DR in the case of Central Scientific Instruments Organisation (supra) & Raja Harpal Singh Inter College (supra) are not applicable, in as much as, the decisions were rendered considered that the explanation tendered by the assessee in support of belated submissions of the returns was found to be not plausible. In this case, the reason for deleting the penalty was on account of the new provision of law inserted into the Act which cast an obligation on the assessee to deposit the tax and file the return of income. However the present case is not identical, as in the present case the assessee has pleaded alleged financial difficulty and not ignorance of law. 08. Similarly in the matter of Pravin Chatarbhuj Bajaj (supra), the facts before the Pune bench of the Tribunal were different as there was (i) a server non-function thus depriving the assessee to file the e-TDS returns (ii) there was a complication in filing the TDS return and (iii) it was observed by the Pune bench as under : "In this bunch of appeals there are cases where the assessee has defaulted in ....