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2015 (6) TMI 868 - CESTAT MUMBAILevy of penalty - appellant realizing its liability, on being so pointed out by the Revenue, have deposited the admitted tax along with interest - Goods Transport Agency Services - Works contract service - Held that:- there is no finding either in the Order-in-Original or in the Order-in-Appeal indicating any action or inaction on part of the appellant indicating towards collusion, fraud, active concealment of tax under the Finance Act, 1994. However, it appears that the appellant had turn over above ₹ 40 lakhs per annum under some of the financial year during the disputed period. In such circumstances, as provided under Section 44AB of Income Tax Act, the Books of Account were subject to tax audit and accordingly, it appears that the appellant was receiving the service of professionals like C.A. understanding tax obligations. But, there is no finding of any contumacious conduct on part of the appellant. - appellant is entitled to benefit under Section 73(3) of the Finance Act, 1994 and it appears that the show-cause notice was issued without proper consideration of the facts on record. In this view of the mater, penalty as reduced by the first appellate authority is dropped and set aside and the appellant will be entitled to refund or adjustment of the excess tax paid, which shall be calculated and granted by the adjudicating authority. - Decided in favour of assessee.
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