TMI Blog2014 (3) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... gned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee arises from the order of the CIT (Central) Ludhiana dated 12.03.2013 for the assessment year 2008-09. The assessee has raised following grounds of appeal: 1. That the order of the Ld. CIT(Central) holding Asstt. order being erroneous and prejudicial to the interest of revenue is against law and facts of the case and therefore section 263 of the Income Tax Act, has wrongly been applied. 2. That there was no opportunity granted by the CIT(Central) to the assessee to offer his comments on the report of the AO as the notice for appearance before the CIT (Central) for 7/3/2013 was never served on the assessee and therefore the order passed by the CIT is illegal, void ab initio on the issue of lack of opportunity. 3. That non deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y time and therefore the assessment framed is not effected and therefore there is no scope of applying the provisions of section 263 of the Act. 7. That the Deptt. is keeping different standards for different assessee s as the same Central Circle at the same point of time accepts the agreement of spread over in the case of another assessee and penalty u/s 271(1)(c) not initiated and consequently section 263 is not invoked and at the same time the same Circle applies a different yardstick in the case of assessee where provision of section 263 applied despite the agreement with the Deptt. 8. Such other grounds as may be urged on hearing. 2. The Ld. counsel for the assessee, Mr. S.S.Kalra, CA, did not press ground No.1 and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings u/s 271A 271B should have been initiated and imposed. As the penalty u/s 271A and 271B were not initiated during the assessment proceedings the order passed by the A.O. is erroneous and prejudicial to the interest of the revenue. Accordingly, a show cause notice u/s 263(1) of the Act was issued to the assessee vide letter dated 20.12.2012 in response to which AR of the assessee Sh. S.S. Kalra submitted his reply dated 09.01.2013. On assessee s submissions, a report was called for from the A.O. which was submitted by the AO vide his letter dated 30.01.2013 forwarded by the Addl. CIT, Range Central, Ludhiana vide office letter dated 04.02.2013. Copy of the above report has been sent to the assessee for his reply. Vide letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards the penalty proceedings u/s 271(1)(c) of the Act read with Explanation 5A, Mr. S.S.Kalra, CA argued and invited our attention to PB-5 being the letter, which is statement u/s 132(4) of the Act of the assessee, in which the assessee has very categorically made a surrender under section 132(4) and where in the said letter, it has been stated that surrender u/s 132(4) is made in order to buy peace and gain the immunity from penal action u/s 271(1)(c) or 276 of the I.T.Act. As regards the explanation to section 5A to section 271(1)(c) of the Act, the return has been filed within due date as prescribed under the Act and due date does not only refer to the provisions of section 139(1) but the same includes the return filed under section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Tarsem Lal, on the other hand, relied upon the order of CIT (Central) Ludhiana. 10. We have heard the rival contentions and perused the facts of the case. 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 applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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