TMI Blog2017 (1) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... following ground:- 1. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in deleting the penalty u/s. 271(1)(c) amounting ₹ 32,12,599/- imposed by the AO holding that there is no furnishing of inaccurate particulars of income or deliberate attempt to conceal income by the assessee ignoring the fact that the genuineness of expenditure claimed by the assesee cannot be established. 2. That on the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in deleting the above said penalty ignoring the fact that addition made by the AO was confirmed by the First Appellate Authority. 3. The Appellant craves to be allowed to add any fresh ground of appeal and / or delete or amend any of the grounds of appeal. 2. The facts narrated by the Revenue Authorities are not disputed by both the parties, therefore, the same are not repeated here for the sake of convenience. 3. Ld. DR relied upon the order of the AO. 4. On the other hand, Ld. A.R. of the Assessee relied upon the order of the Ld. CIT(A) and has stated that Ld. CIT(A) has passed a well reasoned order which does not need any interference. Further, Ld. A.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no disallowance uls 40(a)(ia) was called for, for not deducting TDS uls 194 or 194H. 6.9. The intention to quote these cases. at this juncture is to show that M/s Vikram Electric Equipment (P) Ltd. is an existing entity and works as a consolidator. In no case the genuineness of the transactions with MIs Vikram Electric Equipment (P) Ltd. has been doubted. In all related concerns MIs Vikram Electric Equipment (P) Ltd. is the consolidator to whom payments were made on a regular basis and the payments have never been considered as non genuine expenditure. In view thereof, the findings of the Hon' ble ITAT establish that M/s Vikram Electric Equipment (P) Ltd. is a genuine existing entity. Further, that TDS on payments made to MIs Vikram Electric Equipment (P) Ltd. is not required to be deducted. 6.10. I shall now consider whether penalty uls 271(1)(c) is leviable on the additions made in this year treating payment to M/s Vikram Electric Equipment (P) Ltd. as non genuine and disallowing the payment made for not deducting TDS. 6.11. In the matter of penalty, it is seen that the appellant had furnished all particulars in respect of income earned and expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1430/D/2011 order dated 12.4.2013 followed the judgment of Tribunal in the case of Finian Estates Developers P. Ltd. 142 TTJ 545 (Del) and allowed the appeal of the assessee. 7.1. The ld. AR further submitted that against the order of Finail Estate Developers (supra) the Revenue has not preferred any appeal before the Hon ble High Court. 7.2. The ld. AR has also placed reliance on the decision of this Tribunal in the case of Penthea Builders Developers P. Ltd. in ITA No. 1951/D/2011 for AY 2007-08 on identical set off facts. The ld.AR submits that the Revenue had preferred an appeal in the case of Panthea Builders and Developers (supra) in ITA No. 270/2005 before the Hon ble Jurisdictional High Court. The Hon ble High Court at para 11 has observed the following facts: 11. In its order dt. 5th October, 2011, the ITAT examined the nature of the MoU between Finian and VEEPL with particular reference to the clauses therein and concluded that Finian was transacting with VEEPL on a principal to principal basis and that it could not be said that the payment to VEEPL was for rendering services. Consequently, it was held that section 194H of the Act was not at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has the payment to Vikram Electric Equipment P. Ltd., on account of transfer of certain rights of Vikram Electric Equipment P. Ltd. in the lands transferred to the assessee, and was not towards any services rendered. The ld.AR submitted that as a consolidator, Vikram Electric Equipment P. Ltd. was to contact the local farmers in and around Gurgaon, who were willing to sell their land. 7.4. He submitted that Vikram Electric Equipment P. Ltd. was making payments from its account to the farmers and thereto have certain rights in the land. On the ultimate transfer of land to the assessee through Vikram Electric Equipment P. Ltd., the final payment was to be made to the farmers. Towards the right of Vikram Electric Equipment P. Ltd. 2% of the cost of land (in some cases, even a higher amount) was to be paid to Vikram Electric Equipment P. Ltd. as mutually agreed. This was the mutually agreed price. 7.5. The ld.AR submitted that Vikram Electric Equipment P. Ltd. worked for land acquisition and after scrutiny of the concerned documents of the land, Vikram Electric Equipment P. ltd. would suggest the appropriate land for purchase by the assessee. He submitted that Vikr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that Vikram Electric Equipment P. Ltd. or its agent agreed to assign their rights to purchase the land in favour of the assessee. It would be appropriate to reproduce here, the said clause 3.2: 3.2 In consideration of the consolidator or its agent/nominee assigning its right to purchase the land in favour of the Buyer Company and causing the land owners to execute the sale deeds directly in favour of the Buyer Company, the Buyer Company shall pay the consolidator such sum as may be mutually agreed. However, it is specifically agreed by the consolidator that no sum shall accrue to it on this account till it procures 27 acres of land for the Buyer company (unless the Buyer Company decides to procure less than 27 acres through the consolidator) and all the issues relating to possession and mutation of such land are settled to the satisfaction of the Buyer Company. 9.1. The above clause also makes it evident that unless the assessee decided to procure less than 27 acres of land through Vikram Electric Equipment P. Ltd. Vikram Electric Equipment P. Ltd. was to procure 27 acres of land for the assessee, failing which, no payment was to be made by the assessee to Vikram Elec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
