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Judgment
Badar Durrez Ahmed, J.
CM No. 7834/2008 in ITA 677/2008
Allowed subject to all just exceptions.
ITA Nos. 677/2008 & 679/2008
These appeals pertaining to the assessment years 2000-2001 and 2001-02 have been preferred against the common order of the Tribunal passed on 03.08.2007. The only issue sought to be raised by the revenue in these appeals is with regard to the question of penalty u/s 272A(2)(g) of the Income Tax Act, 1961 (hereinafter referred to as the ''said Act''). According to the learned Counsel for the revenue the levy of such penalty by the Assessing Officer ought to have been confirmed by the Income Tax Tribunal. According to the learned Counsel the imposition of penalty u/s 272A(2)(g) of the said Act is independent to the penalties that can be levied u/s 221 which pertain to default in depositing the tax deducted at source, which is a consequence of the assessed being in default in view of the provisions of Section 201(1). The present case, according to the learned Counsel, falls u/s 203(1) of the said Act and the two are unrelated and independent.
The Tribunal has noted that by virtue of its earlier order dated 26.08.2005 in ITA Nos. 117 and 118/D/2002, after considering the Explanation of the assessee, it held that the assessed was not in default u/s 201(1) of the said Act and thereby there was no question of imposing penalty u/s 221 of the said Act. The Tribunal took the view that if on the basis of the Explanation of the assessed the Tribunal has already held the assessed not to be in default u/s 201(1) of the said Act, then on the basis of the same Explanation the assessed cannot be held to be in default, inter alia, u/s 272A(2)(g) of the said Act for levying the penalty. The Tribunal also noted that it was not controverter by the revenue that the filing of the annual TDS returns and issuance of TDS certificates to the deductees was dependent on the deposit of TDS as well as copy of TDS certificate and details of TDS deposits which were required to be given in the TDS returns as also in the TDS certificates. The Explanation given by the assessed for the delay in making the deposits and in filing the TDS returns has been accepted. In these circumstances, the Tribunal was of the view that once the Explanation for the delay, which is common, both, for the making of the deposit and filing of the TDS return, on the one hand, and the issuance of the TDS certificate on the other, has been accepted, then there is no question of imposing a penalty on the assessee even u/s 272A(2)(g) of the said Act.
We have also examined Form 16-A, which is a form in which the TDS certificate is to be issued in terms of Rule 31 (1) (b) of the Income Tax Rules, 1962. It is apparent from an examination of the said form that the TDS certificate can only be issued after the TDS amount is deposited with the Central Government in the bank. The details of the challan through which the deposit has been made are also required to be filled in the said certificate. Therefore, it cannot be said that the issuance of the TDS certificate is independent to the making of the TDS deposit. Once the Explanation of delay in making the deposit has been accepted, there is no reason as to why the same cannot be used for the purposes of delay in the issuance of the TDS certificate. The Income Tax Tribunal has committed no error. No substantial question of law arises. These appeals are dismissed.