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2016 (9) TMI 498 - ITAT DELHI

2016 (9) TMI 498 - ITAT DELHI - TMI - Penalty u/s. 271(1)(c) - order passed u/s. 201(1)/201(1A) or u/s. 143(3) - non deduction of tds - Held that:- The assessee had offered the amounts to tax at the time of filing the Income Tax Return, and subsequently also paid the TDS too, and if the penalty is levied it would be result in double taxation. This view is fully supported by the jurisdictional High Court decision in the case of Woodward Governor India Ltd. Vs CIT (2001 (4) TMI 34 - DELHI High Cou .....

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Foods Ltd. v. CIT (2003 (9) TMI 294 - ITAT BANGALORE-B ) it is held that not passing order under section 201(1) before initiation of proceedings under section 271C make imposition of penalty invalid. - Decided in favour of assessee - ITA No. 736/Del/2015 - Dated:- 2-8-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER For The Department : Sh. A Srinivasa Rao, Sr. DR For The Assessee : Sh. Rajesh Jain, CA ORDER PER H.S. SIDHU, JM This appeal is filed by the Revenue is directed against the Order dated 14.11. .....

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ere to the provisions of Chapter XVII of Income Tax Act, 1961. 3. The appellant craves leave to add, alter or amend any of the grounds of appeal at the time of hearing. 2. The brief facts of the case are that a reference has been received by the Addl. CIT, Range-49, New Delhi from the ITO, Ward 1(3), stating that in the course of assessment proceedings u/s. 143(3) for AY 2009-10 the assessee had made payment aggregating to ₹ 2,71,21,666/- on account of unascertained provisions added back t .....

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to amount of tax which such person failed to deduct. Therefore, in accordance with the provisions of Chapter XVII-B of the Act, penalty is leviable u/s. 271C of the Act. Hence, the AO levied the penalty of ₹ 24,16,490/- u/s. 271(1)(C) of the Act vide his order dated 25.10.2013. 3. Aggrieved by the aforesaid addition, assessee appealed before the Ld. CIT(A)-XII, New Delhi vide his impugned order dated 14.11.2014 has allowed the appeal of the assessee. 4. Against the order of the ld. CIT(A), .....

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f the Revenue may be dismissed and Ld. CIT(A) s order may be upheld, who has also relied upon some of the decision in his impugned order. - CIT vs. Bank of Nova Scotia (SC) - CIT vs. Itochu Corp. (DHC) - CIT vs. Mitsuie & Co. Ltd. (DHC) - Woodword Governors India P. Ltd. vs. CIT (DHC) - Sahara India Finance Corporation Ltd. vs. Addl. CIT (ITAT, Delhi) 7. I have heard both the parties and perused the records available with us, especially the order of the Ld. First Appellate Authority and the .....

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e whole or any part of the tax as required by or under the provisions of Chapter XVII B of the Act, he is liable to pay by way of penalty, a sum equal to the amount of tax which such person fail to deduct. 4. It is seen from the penalty order that the assessee has not deducted taxes amounting to ₹ 24,16,490j-, hence the penalty. However, the assessee has raised ground against the penalty and highlighted that due to liquidity crunch the assessee failed to deduct tax on royalty payments. TDS .....

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her pleaded that the payments on which TDS was to be deducted were added uj s 40(a)(i) by the assessee. Further, no order u/s 201(IA) has been passed against the assessee for default in payment of TDS. 6. It is matter of record, that the assessee company having failed to deduct the TDS and to deposit the tax deducted has suo-motto on its own offered to tax the said expenditure in their regular assessment proceedings. Coupled with that the assessee company has deposited the TDS due alongwith the .....

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ny offered the whole amount on which they defaulted in payment of TDS for addition, in the course of normal assessment. 7. Since the assessee had offered the aforementioned amounts to tax at the time of filing the Income Tax Return, and subsequently also paid the TDS too, and if the penalty is levied it would be result in double taxation. The matter is supported by the decision of jurisdictional high court in the case of Woodward. Governor India Ltd. Vs CIT (2002) 253 ITR 745 Del and that of the .....

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