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2014 (3) TMI 1005 - AT - Income TaxRevision u/s 263 - applicability of provisions of section 40(a)(ia) and 194H - Held that:- As regards the applicability of provisions of section 40(a)(ia) and 194H of the Act, we are convinced with the arguments made by the Ld. counsel before the Ld. CIT (Central), Ludhiana and before us that the TDS provisions under section 194H are applicable if the gross receipts exceeds ₹ 40 lacs in the immediately preceding year whereas in the present case, the assessee’s turnover is just ₹ 5.43 lacs and therefore, TDS provisions u/s 194H of the Act cannot be made applicable in the impugned year. Accordingly, the provisions of section 40(a)(ia) of the Act are not applicable. Therefore, the ld. CIT (Central) Ludhiana is not justified in concluding that the order of the AO is erroneous or prejudicial to the interest of the revenue and the same is cancelled to that extent. As regards the surrender made, there was surrender and statement u/s 132(4) of the assessee is available at PB-5 where categorically it was stated that the surrender was made in order to buy peace and to get immunity from penal action u/s 271(1)(c) or 276 of the Act. Therefore, penal provisions cannot be made applicable in the facts and circumstances of the present case. As regards filing of the return within due date as prescribed under the Act, we are convinced with the arguments made by the ld. counsel for the assessee, Mr. S.S. Kalra, CA that due date includes return filed under section 139(4) of the Act in view of the decisions referred to by the Ld. counsel for the assessee. Therefore, on this account, as well, the Ld. CIT(Central), Ludhiana is not justified in concluding the order of the assessment as erroneous and prejudicial to the interest of the Revenue. Accordingly, the order of the ld. CIT(Central) Ludhiana is cancelled on this account, as well. As regards the levy of penalty under section 44AA & 44AB of the Act, they are independent of assessment proceedings, which could be levied independent of the assessment. Therefore, the views of the ld. CIT(Central) Ludhiana to hold that assessment was made erroneous and prejudicial to the interest of the revenue, cannot be upheld and the same is reversed. As regards the arguments made by the Ld. CIT(Central) Ludhiana, that the AO has not made application of mind with regard to levy of penalty, cannot be held good in view of our decision hereinabove. Accordingly, on all the three counts, the order of the Ld. CIT(Central), Ludhiana is directed to be cancelled - Decided in favour of assessee in part.
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