My quarterly TDS and TCS statements for 2010-11 were filed late and the JCIT has levied penalty at Rs 100 a day under section 272A(2)(k). No tax was lost. Is that a defence?
No. The Pune Bench upheld a penalty of Rs 1,09,304 under section 272A(2)(k) read with section 200(3), holding that the absence of loss to the Revenue does not mean the deductor may skip the obligation to file quarterly statements within the statutory time. It followed the Allahabad High Court in Raja Harpal Singh Inter College v PCIT, noting that no decision of the jurisdictional High Court had been brought to its notice.
Decided by the ITAT (Shri S.S. Godara, Judicial Member and Dr. Dipak P. Ripote, Accountant Member) on 2023-05-04, reported as ITA No. 251/PUN/2023 (ITAT Pune 'B' Bench); no law-report citation traced. It bears on section 272A(2)(k), section 200(3), section 272A(4), section 273B of the Income Tax Act 1961, in Penalty, TDS Defaults and Appeals matters.
Section 272A(2)(k) governs only statements for tax deducted or collected before 1 July 2012 — from that date the second proviso to section 272A(2) bars the clause (k) penalty and section 271H takes over — so this authority is confined to the older quarters, and an entry offered for a later period is about a provision that no longer applies. Within that field it is the answer to the argument practitioners reach for first: that the tax was paid, only the statement was late, and nobody lost anything. The Tribunal also records the arithmetic that matters — Rs 100 for every day of delay, capped by the proviso at the amount of tax deductible or collectible for that statement, which is why four of the eight quarters here were capped at figures as small as Rs 1,158. The order is also a caution about how such appeals are lost: nobody appeared, the ITAT's notice came back marked 'no such person found on address', and the Bench recorded that the company had given a residential flat as its address.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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For assessment year 2011-12 the deductor filed eight quarterly statements late: four in Form 26Q for the quarters ending June 2010 to March 2011, due between 15-07-2010 and 15-05-2011 and all filed on 03-09-2011 with delays of 415, 323, 231 and 111 days; and four in Form 27EQ for the same quarters, all filed on 31-07-2011 with delays of 381, 289, 197 and 77 days. The JCIT (TDS), Nashik computed penalty at Rs 100 per day of delay, restricted in four cases by the proviso to the tax deductible or collectible for that statement (Rs 1,158, Rs 1,158, Rs 1,488 and, for the remaining quarters, the daily figure being the lower), and levied Rs 1,09,304 in all under section 272A(2)(k) read with section 200(3), recording that the deductor had been given an opportunity by notice dated 18-03-2013 and had filed no submission and given no reason for the delay. In the second round before the Tribunal nobody appeared for the assessee; the Tribunal's notice was returned by the postal authorities marked 'no such person found on address' after a visit on 24-04-2023, and no paper book or statement of facts was filed.
The appeal of the assessee was dismissed and the penalty order under section 272A(2)(k) was upheld. No valid reason having been given for the delay in filing the quarterly statements, and the claim that no loss to the Revenue had been caused not meaning that the assessee may skip the obligation to file them, the penalty was correctly levied; sufficient opportunity had been granted by both the JCIT and the CIT(A) and the assessee had failed to avail of it (paragraph 4).
The Tribunal recorded that it was a fact that the statements had been filed beyond the statutory time limit and that the JCIT had specifically noted that no reason for the delay had been given despite the opportunity by notice dated 18-03-2013. It then applied the Allahabad High Court's decision in Raja Harpal Singh Inter College v PCIT, which it reproduced at length, and which had rejected the contention that no penalty could be imposed because the failure caused no loss to the Revenue, reasoning that the Department cannot accurately process the deductees' returns until the deduction is reported, that timely processing is the bedrock of an efficient tax administration system, and that the e-TDS statement creates an audit trail. The Tribunal expressly noted that no decision of the jurisdictional High Court had been brought to its notice, and held that the duty to file the quarterly statements within the statutory time is not displaced by the absence of revenue loss.
The assessee in the statement of facts submitted to the CIT(A) has claimed that no loss to revenue has been caused. However, it does not mean that assessee is allowed to skip the provision of filling the quarterly statements.
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Handle my notice → Ask a CA on WhatsAppNo. The Pune Bench upheld a penalty of Rs 1,09,304 under section 272A(2)(k) read with section 200(3), holding that the absence of loss to the Revenue does not mean the deductor may skip the obligation to file quarterly statements within the statutory time. It followed the Allahabad High Court in Raja Harpal Singh Inter College v PCIT, noting that no decision of the jurisdictional High Court had been brought to its notice. This was decided by the ITAT (Shri S.S. Godara, Judicial Member and Dr. Dipak P. Ripote, Accountant Member) and bears on section 272A(2)(k), section 200(3), section 272A(4), section 273B of the Income Tax Act 1961. It is reported as ITA No. 251/PUN/2023 (ITAT Pune 'B' Bench); no law-report citation traced. Section 272A(2)(k) governs only statements for tax deducted or collected before 1 July 2012 — from that date the second proviso to section 272A(2) bars the clause (k) penalty and section 271H takes over — so this authority is confined to the older quarters, and an entry offered for a later period is about a provision that no longer applies. Within that field it is the answer to the argument practitioners reach for first: that the tax was paid, only the statement was late, and nobody lost anything. The Tribunal also records the arithmetic that matters — Rs 100 for every day of delay, capped by the proviso at the amount of tax deductible or collectible for that statement, which is why four of the eight quarters here were capped at figures as small as Rs 1,158. The order is also a caution about how such appeals are lost: nobody appeared, the ITAT's notice came back marked 'no such person found on address', and the Bench recorded that the company had given a residential flat as its address. If it applies to you, the first step is this: Check the date of the deduction or collection first. If the statement relates to tax deducted or collected on or after 1 July 2012, section 272A(2)(k) cannot be levied at all and the answer is the second proviso to section 272A(2), not reasonable cause.
For assessment year 2011-12 the deductor filed eight quarterly statements late: four in Form 26Q for the quarters ending June 2010 to March 2011, due between 15-07-2010 and 15-05-2011 and all filed on 03-09-2011 with delays of 415, 323, 231 and 111 days; and four in Form 27EQ for the same quarters, all filed on 31-07-2011 with delays of 381, 289, 197 and 77 days. The JCIT (TDS), Nashik computed penalty at Rs 100 per day of delay, restricted in four cases by the proviso to the tax deductible or collectible for that statement (Rs 1,158, Rs 1,158, Rs 1,488 and, for the remaining quarters, the daily figure being the lower), and levied Rs 1,09,304 in all under section 272A(2)(k) read with section 200(3), recording that the deductor had been given an opportunity by notice dated 18-03-2013 and had filed no submission and given no reason for the delay. In the second round before the Tribunal nobody appeared for the assessee; the Tribunal's notice was returned by the postal authorities marked 'no such person found on address' after a visit on 24-04-2023, and no paper book or statement of facts was filed. The matter was decided on 2023-05-04 by the ITAT (Shri S.S. Godara, Judicial Member and Dr. Dipak P. Ripote, Accountant Member). On those facts the ITAT held as follows. The appeal of the assessee was dismissed and the penalty order under section 272A(2)(k) was upheld. No valid reason having been given for the delay in filing the quarterly statements, and the claim that no loss to the Revenue had been caused not meaning that the assessee may skip the obligation to file them, the penalty was correctly levied; sufficient opportunity had been granted by both the JCIT and the CIT(A) and the assessee had failed to avail of it (paragraph 4).
The Tribunal recorded that it was a fact that the statements had been filed beyond the statutory time limit and that the JCIT had specifically noted that no reason for the delay had been given despite the opportunity by notice dated 18-03-2013. It then applied the Allahabad High Court's decision in Raja Harpal Singh Inter College v PCIT, which it reproduced at length, and which had rejected the contention that no penalty could be imposed because the failure caused no loss to the Revenue, reasoning that the Department cannot accurately process the deductees' returns until the deduction is reported, that timely processing is the bedrock of an efficient tax administration system, and that the e-TDS statement creates an audit trail. The Tribunal expressly noted that no decision of the jurisdictional High Court had been brought to its notice, and held that the duty to file the quarterly statements within the statutory time is not displaced by the absence of revenue loss. In the words reproduced by the source cited on this page: "The assessee in the statement of facts submitted to the CIT(A) has claimed that no loss to revenue has been caused. However, it does not mean that assessee is allowed to skip the provision of filling the quarterly statements." The decision followed or applied Raja Harpal Singh Inter College v. PCIT [2016] 386 ITR 327 (Allahabad) — followed; Rashmikant Kundalia v. Union of India (Bombay) — relied on within the Allahabad High Court passage reproduced by the Tribunal.
It was decided by the ITAT on 2023-05-04 and is reported as ITA No. 251/PUN/2023 (ITAT Pune 'B' Bench); no law-report citation traced. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 272A(2)(k), section 200(3), section 272A(4), section 273B, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the department, and it appears in this library for that reason — you need to know what the Assessing Officer will cite against you. The appeal of the assessee was dismissed and the penalty order under section 272A(2)(k) was upheld. No valid reason having been given for the delay in filing the quarterly statements, and the claim that no loss to the Revenue had been caused not meaning that the assessee may skip the obligation to file them, the penalty was correctly levied; sufficient opportunity had been granted by both the JCIT and the CIT(A) and the assessee had failed to avail of it (paragraph 4). It arises in Penalty, TDS Defaults and Appeals matters, on section 272A(2)(k), section 200(3), section 272A(4), section 273B of the Income Tax Act 1961, and was decided by Shri S.S. Godara, Judicial Member and Dr. Dipak P. Ripote, Accountant Member. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. For pre-July-2012 quarters, work the proviso: the penalty for each statement is capped at the tax deductible or collectible for that statement, which will often be far below Rs 100 a day for the full delay. Put a reasoned cause on record before the levying authority, not for the first time in appeal — here the JCIT recorded that no reason at all had been given despite an opportunity by notice, and that recital is what the Tribunal relied on. Keep the address on Form 35 and Form 36 current and capable of receiving service; the Bench drew an adverse inference from the returned notice.
Validity check could not be completed. Validity check could not be completed. No later treatment was searched for or found. The order is confined to statements for tax deducted or collected before 1 July 2012: the second proviso to section 272A(2), inserted by the Finance Act 2012, bars a clause (k) penalty for statements relating to deduction or collection on or after that date, and section 271H applies instead. It is therefore not 'superseded by amendment' as decided, but it must not be offered as authority for any later period. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The order is in a second round: an earlier Tribunal order dated 30-08-2019 in ITA No. 591/Pune/2017 had remanded the matter to the CIT(A) for de novo adjudication, and the CIT(A) passed the order under section 250 on 30-01-2023 that is under appeal here. The assessee's grounds complain that the CIT(A) exceeded the remand direction by confirming Rs 1,09,304 instead of deciding the leviability of Rs 16,300 for 163 days, but the Tribunal does not deal with that complaint in terms. Paragraphs 12 to 20 that appear in the middle of the document are the Allahabad High Court's paragraphs in Raja Harpal Singh Inter College, reproduced at the Tribunal's own paragraph 3.7 — they are not this Tribunal's paragraphs, and the Tribunal's own numbering runs 1 to 5 with sub-paragraphs 2.1 to 2.2 and 3.1 to 3.8. Two consecutive paragraphs are both numbered 3.1. The Allahabad High Court decision was not read in the original this pass; it is described here only as the Tribunal followed it. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeal of the assessee was dismissed and the penalty order under section 272A(2)(k) was upheld. No valid reason having been given for the delay in filing the quarterly statements, and the claim that no loss to the Revenue had been caused not meaning that the assessee may skip the obligation to file them, the penalty was correctly levied; sufficient opportunity had been granted by both the JCIT and the CIT(A) and the assessee had failed to avail of it (paragraph 4).
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