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2020 (4) TMI 713 - AT - Income TaxCondonation of delay - delay of 979 days - HELD THAT:- Delay cannot be attributed to the deliberate conduct of the assessee neither through intention nor through action. No malafide is made out by the Revenue. Further, we find relevant to extract the relevant paras from the judgment in the case of Atlas Copco [2019 (8) TMI 1415 - ITAT PUNE] wherein held that the assessee has raised a legal ground through these Cross objections, which goes to the root of the matter. It would be seen infra that the said legal issue is squarely covered in the assessee’s favour by several orders passed by the Tribunal including those by the Pune Benches. Under these circumstances, we condone the delay and take up the Cross objections for disposal on merits. Penalty u/s 271C - Non deduction of TDS on contractual payments - payee is Non Resident Indian (NRI) and the assessee is under statutory obligation to make the deduction of TDS at the rate of 40% - HELD THAT:- Assessee brought our attention to the various decisions and submitted that this is a covered issue by virtue of the order of the Bangalore Bench of the Tribunal in the case of ITO vs. Intel Tech India (P.) Ltd.. [2009 (4) TMI 546 - ITAT BANGALORE]. Assessee submitted that the levy of interest u/s 201(1)/201(1A) of the Act is not sustainable when the payee made the payment of taxes fully. Non-Discrimination Article is provided by way of Article 25 of the India-Indonesia Treaty whereby the non-resident assessee has to be treated as part with domestic entities. In other words, the judgment of the Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverage (P.) Ltd. [2007 (8) TMI 12 - SUPREME COURT] is equal applicable to the case of a non-resident like the present deductee. This issue must go back to the file of the CIT(A) for fresh adjudication in the matter of findings of the CIT(A) does not sync with the legal proposition laid down by the various judgements cited above. Therefore, the CIT(A) is directed to examine the issue afresh and applied the correct law after granting reasonable opportunity of being heard to the assessee as per set principles of natural justice. Appeals of the assessee are allowed for statistical purposes.
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