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TMI Blog2019 (1) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... 75/- in respect of following controversial/disputed disallowance made in the assessment order: i) Payment Gateway Charges disallowed u/s 40(a)(ia) alleging TDS should have been deducted u/s 194H of the Act wherein penalty of Rs. 2,85,12,768 has been upheld. ii) Difference in rate of depreciation on Computer Peripherals wherein penalty of Rs. 55,491 has been upheld. iii) Difference in amount of depreciation on 'Website Development Cost' arising due to past Appellate order, wherein penalty of Rs. 22,84,716 has been upheld. 2. That on the facts and the circumstances of the case and in law, Ld. CIT(A) has failed to appreciate that the provisions of section 271(l)(c) of the Act are not applicable in this case as the Appellant had furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re met in this case and hence the impugned order is perverse, vitiated in law and deserves to be quashed on this ground alone. Penalty in respect of Payment Gateway Charges disallowed under section 40(a)(ia) 6. The Ld. CIT(A) on the facts and circumstances of the case and in law has erred in upholding penalty of Rs. 2,85,12,768 under Section 271(l)(c) of the Act on disallowance of the payment gateway charges retained/paid to Indian banks, without appreciating the fact that: i) The issue whether TDS is required to be deducted on payment gateway charges retained/paid to banks is controversial, debatable and litigative and various decisions of Hon'ble ITAT have held that on similar payments there is no requirement of TDS. ii) The provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate that this issue has been under litigation and the Hon'ble Income Tax Appellate Tribunal in Appellant's own case for AY 2004-05 vide order dated March 9, 2012 has allowed depreciation @ 25%, whereas return of income for AY 2009-10 was filed on September 26,2009 The above grounds of appeal are without prejudice to and independent of one another. 2. The brief facts of the case are that the assessment of assessee for the year under consideration was completed u/s. 143(3)/144C(3) of the IT Act on 01.05.2013 at an income of Rs. 55,13,70,655/- against the loss of Rs. 41,69,31,088/- declared by assessee vide its revised return filed. The Assessing Officer while completing the assessment made various additions under different heads, as menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 (ITA No. 4721/Del/2014). The relevant observations of ITAT read as under : On consideration of the rival submissions in the light of the earlier order of the Tribunal dated 30th January, 2017. (supra) we find that this issue is already decided in favour of the assessee by the Tribunal following the decision of the Hon 'ble Delhi High Court in the case of CIT Vs. JDS Apparels (P.) Ltd. (2015) 370 ITR 454 (Del.) in which it was held "that commission to bank on payments received from customers who had made purchase through credit cards is not liable to TDS under section 194H of the I. T. Act." The issue is covered in favour of the assessee by order of ITAT, Delhi Bench in the case of same assesseevide order dated 30th January, 2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty and therefore, in such a case no such penalty can survive. Accordingly, the penalty based on this addition, sustained by ld. CIT(A) deserves to be cancelled. 5. As far as the penalty based on addition made on account of excess depreciation claimed on website development cost is concerned, the assessee claimed depreciation of Rs. 3,02,03,098/- @ 60% on the website development cost. The Assessing Officer allowed depreciation @ 25% after following order of CIT(A) for earlier A.Y. 2007-08 and of Tribunal for A.Y. 2004-05 and accordingly made disallowance of depreciation of Rs. 1,76,18,474/-. The contention of the ld. AR is that this is a debatable issue. While the Tribunal allowed depreciation @ 25% in 2004-05 but in appeal for A.Yrs.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs by clubbing them with the computers. As per Assessing Officer these items fall in the category of office equipments for which depreciation is available @ 15%. It was also observed that assessee had clubbed the license fees paid for the software with the computer and the software were not purchased with their source codes and such software were eligible for depreciation @ 25%. Thus, the Assessing Officer worked out excess depreciation of Rs. 73,48,472/- and added the same to the income of assessee. Based on this addition penalty u/s. 271(1)(c) was imposed. The contention of the assessee has been that similar claim of the assessee stood accepted in earlier years. Moreover, in quantum appeal of assessee for the year under consideration, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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