TMI Blog2016 (6) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... nitial burden is on the assessee to show that there exists reasonable cause which was the reason for the failure. There- after, the officer has to consider whether the explanation offered by the assessee or other person as regards the reason for failure, was on account of reasonable cause. See Wood ward Governor India P. Ltd. Vs CIT [2001 (4) TMI 34 - DELHI High Court ] - Decided in favour of assessee - ITA Nos. 337 & 338/Chd/2016, C.O.Nos.10 & 11/Chd/2016 - - - Dated:- 21-6-2016 - Shri George George K. Judicial Member For the Assessee : Shri N. K. Shahi For the Department : Shri Manjit Singh, DR ORDER These appeals at the instance of the Revenue and the Cross Objections preferred by the assessee arise out of the conso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant craves leave to amend, add, alter or delete any of the aforesaid grounds till the disposal. 3. Briefly stated, the facts of the case pertaining to the grounds raised by the Revenue are as follows : 3.1) The assessee is an individual. He is running the business of purchase and sale of iron scrap. When the assessee makes purchase of iron scrap , the tax was collected by the parties from whom the assessee made purchases. Further, when the iron scrap was sold by the assessee, no tax was collected at source under section 206(1) of the Income Tax Act, 1961 (in short 'the Act'). Therefore, penalty proceedings under section 271CA of the Act were initiated. 3.2) In reply to the show cause notice for imposition of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no doubt that the assessing officer has stated all the necessary facts along with explanations and reasons for non acceptance of appellant's plea. It is an admitted fact that the appellant has furnished complete details of sales of scrap made to various traders along with copies of their income tax returns of the relevant assessment year evidencing the payment of due taxes on their income by the respective purchasers. On perusal of order dated 18.03.2013 passed by the Income Tax Officer (TDS), Patiala, it is observed that no demand on account of non collection of tax at source has been raised and she has charged interest on the tax not so collected till the filling of ITR by respective buyers relying on the judgment of HINDISTAN COCA CO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. As aforesaid, the facts of the present case are covered by the above judgment. The JOT (TDS), Chandigarh has not followed it on the ground that the judgment has not attained finality. In my considered view, the view taken by the JOT (TDS) is not acceptable. Clearly the Hon'ble ITAT is a final fact finding authority and unless any upper court has upset its judgment on the same issue, its decision will prevail and any officer operating under law cannot ignore it on this ground. Accordingly, this judgment has full binding force in the present case. Further, various courts have also settled the issue as in the case of Sree Manjunathan Wines vs CIT (2011) 202 Taxman 62Q {Karn) which held that in case appellant has not collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions and perused the material available on record. The order of the Tribunal referred to above in the case of ITO (TDS), Patiala Vs. Shri Om Parksh Gupta (HUF), Mandi Gobindgarh was pronounced today i.e. on 20.6.2016. The issue raised in this appeal is identical to the issue raised in the above-cited case. The matter has been decided by the Tribunal in favour of the assessee in the above case. The relevant findings of the Tribunal in the above case read as under : 5. After considering rival submissions, I am not inclined to interfere with the order of the ld. CIT( Appeals) in canceling the penalty. The ld. CIT( Appeals) has recorded specific finding off act that assessee furnished complete details of sales of scrap made to various t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no demand arises against the assessee and all taxes have been paid and no loss to revenue have been caused, therefore, it is not a fit case for levy of penalty against the assessee. Hon'ble Delhi High Court in the case of Wood ward Governor India P. Ltd. Vs CIT 253 ITR 745 held as under : Levy of penalty under section 271C of the Income-tax Act, 1961, for failure To deduct tax at source, is not automatic. In order to bring in application of Section 271C, in the backdrop of the overriding non obstante clause in section 273B, absence of reasonable cause, existence of which has to be established, is A sine qua non. Before levying penalty, the concerned officer is required to find out that even if there was any failure to deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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