TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 428
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of any deliberate act in defiance of law or contaminous conduct or in the absence of any dishonest intention or in the absence of a conscious disregard of its obligation, especially in the context of a government department such as the revisionist herein." The revisionist herein is an Assistant Material Manager, Rail Electrification under the Indian Railways. The revisionist registered under the VAT Act, 2008 for the relevant year used to deposit the TDS deducted by it from the payment made in relation to works contracts. The TDS for the month of April, May, July, August and October, 2008 amounting to Rs. 30,82,964.00 was deposited with delay of 94, 63, 55, 24 and 39 days allegedly on account of officials being busy in an ensuing inspe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is lawful to do so. Reliance has also been placed upon the decision of the Supreme Court rendered in the case of M/s State of Haryana Vs. Chandra Mani reported in AIR 1996 SC 1623 to contend that some delay with regard to functioning and decision making of Government Agencies is understandable. It was also contended that the interest already having been paid on the delayed deposit the penalty was not justified. In view of the above, it has been contended that the imposed penalty be quashed. The learned counsel for the revisionist also relied upon a recent decision of the Supreme Court rendered in the case of Price Waterhouse Coopers Pvt. Ltd. Vs. Commissioner of Income Tax and Anr. reported in 2012 (348) ITR 306. In the said case the Sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nalty nor would it be vice-a-versa. Sub-section 8 of Section 34 reads as under:- "(8) If any person referred to in sub-section (1) fails to make the deduction or after making deduction fails to deposit the amount so deducted as required by sub-section (6), the assessing authority may, after giving to such person an opportunity of being heard, by order in writing, direct that such person shall pay, by way of penalty, a sum not exceeding twice the amount deductible under this section but not so deducted and, if deducted, not so deposited into the Government Treasury." As is evident from its reading: any person responsible for making deduction of TDS if he fails to make the deduction or after making deduction fails to deposit the amount ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which was upheld in First Appeal, however, the Tribunal on a consideration of the facts and circumstances of the case as also taking into consideration the factum of payment of interest on the delayed deposit of TDS by the appellant and that it was a Government department where some procedural delay in this regard is routine, reduced the penalty to Rs. 308296.40 i.e. 10% of the penalty amount. Though the existence of mens rea or dishonest intent is not a prerequisite for imposition of penalty under Section 34(8) as is evident from a bare reading of the said provision and it is a civil liability, if there are bonafide reasons and mitigating factors which explain the delayed deposit of TDS they should be taken into account while taking a de....