| Question And Answer | |
|---|---|
| Subject: | Prosecution proceedings for delay in payment of TDS |
| Category: | Income-Tax |
| Querist: | prakash |
| Answered by: | KSA Legal Chambers |
| Tags: | charitable trust, Delay in payment, Prosecution, TDS |
| Date: | November 12, 2023 |
Assessee is charitable trust having object of Education . During the year due to financial difficulties could not make the payment of TDS in time , however before receiving any notice from the department paid the TDS along with the interest . Now PCIT has issued SCN U/SEc. 276B/276BB of the Act. Assessee trust has submitted detailed reply stating the reasons for delay . however the PCIT has decided to initiate the prosecution proceedings . whether he is justified in law ? is there any remedy available ? whether the assessee should filed the WP before the HC?
pl guide
Prosecution cannot be launched against all the trustees . Only the person in charge as per section 2(35 ) of the Act can be held responsible . In Golden Gate Properties Ltd. v. DCIT (2019) 179 DTR 241/ 310 CTR 351 (Karn.)(HC) the court held that the fact that the TDS has been deposited subsequently does not absolve the offence. The fact that penalty U/s. 221 has not been levied is not relevant because there is an admitted delay in depositing TDS . Against show cause notice the writ cannot be filed. When the prosecution is launched before the Magistrate Court , the assessee may file a writ petition or revision to quash the proceedings , if the prosecution is launched without following the due process of law . If the amount the small the assessee may approach for compounding of offences .
Please read 156 taxmann.com 151, jharkhand High court, 2023,
If tds and interest is deposited before date of filing of complaint and no penalty proceedings iniated, then prosecution cannot be launched