TMI Blog2019 (11) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... s 271C of the Act r.w. section 275 of the Act. Dealing with the issue on merit relating as to whether the lower authorities were justified in levying penalty u/s 271C of the Act we find it merely academic deal with this issue at this stage. - ITA Nos.262 to 264/Ind/2018 - - - Dated:- 25-10-2019 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : Shri Ronak Doshi, CA For the Revenue : Smt. Ashima Gupta, CIT-DR ORDER PER MANISH BORAD, A.M: The above captioned appeals at the instance of Assessee pertaining to A.Ys. 2008-09 to 2010-11 are directed against the order of Commissioner of Income Tax(Appeals)-II, Indore, (in short CIT ), dated 01.02.2018 which is arising out of the order u/s 271C of the Income Tax Act 1961(hereinafter called as the Act ) framed on 20.08.2013 by JCIT, Indore. 2. As the issues raised in these appeals relates to same assessee and are common in nature, therefore, these were heard together and are being disposed off by this common order for the sake of convenience and brevity. 3. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant craves leave to add to, amends and 1 or alter the above ground of appeal at the time of hearing. 4. The assessee has raised following grounds of appeal in ITA No.263/Ind/2018: GROUND I: PENALTY ORDER PASSED BY LD. JCIT - TDS, INDORE ( TDS OFFICER ) IS BARRED BY LIMITATION U/S. 275 OF THE ACT: 1. On the facts and circumstances of the case and in law, the Hon'ble Commissioner of Income Tax - Appeals, [ the Hon'ble CIT(A) ], erred in upholding the order passed by the TDS Officer u/s. 271C of the Act which was barred by limitation u/s. 275 of the Act. 2. In doing so, the Hon'ble CIT(A) further erred in not adjudicating alternate legal without prejudice ground raised for the first time before the CIT(A). 3. The Appellant prays that the order passed under section 271C of the Act be annulled set aside as being bad in law. WITHOUT PREJUDICE TO GROUND I: GROUND II: LEVY OF PENALTY UNDER SECTION 271C OF THE ACT AMOUNTING TO ₹ 7,28,75,033/-: 1. On the facts and circumstances of the case and in law, the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of payment or credit, the Appellant not being a person responsible for paying income by way of commission to the prepaid distributors and amount on which tax ought to be deducted, the mechanism to deduct TDS fails. c) There was 'reasonable cause' for non-deduction of TDS in view of failure of machinery provisions as also fact that contrary views have been taken by High Courts and ITAT. 3. The Appellant therefore prays Ld. TDS Officer be directed to delete the aforesaid penalty of ₹ 6,71,51,801/-levied under section 271C of the Income Tax Act. GROUND II: GENERAL The Appellant craves leave to add to, amends and/ or alter the above ground of appeal at the time of hearing. 6. Briefly stated facts as culled out from the records are that the assessee company is engaged in the business of providing cellular telephone network through a card called subscriber Identification Module (SIM). Pre-paid or post-paid connections were provided to the subscribers through distributors called Pre-paid Market Associates (PMAs) appointed by the assessee. It offered discount on pre-paid call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged the validity of the impugned assessment orders passed u/s 271C of the Act contending that they are barred by limitation as provided in section 275 of the Act and the penalty orders deserves to be quashed and set aside. 10. In support of the legal ground Ld. counsel for the assessee reiterated the following submissions which were also given before the first appellate authority. AS REGARDS GROUND NO.I FOR APPEALS OF ASSESSMENT YEAR 2007-08 TO ASSESSMENT YEAR 2009-10: PASSING OF ORDER BARRED BY LIMITATION U/S 275 OF THE ACT: At the outset, the Appellant invite Your Honors attention to the proviso section 275(1)(a) of the Act, the relevant extract is reproduced as under: Provided that in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A, and he Commissioner (Appeals) passes the order on or after the 1st day of June, 2003 disposing of such appeal, an order imposing penalty shall be passed before the expiry of the financial year in which the proceedings in the course of which action for imposition of penalty h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08/03/2010 for AY 2008-09, and 02/12/2011 for A Y 2009-10, the order would have certainly been received by the Chief Commissioner by March 31,2011and AY 2007-08, March 31,2011 for AY 2008-09, and March 31 ,2012 for AY 2009-10 and thus penalty order under section 271C ought to have been passed by March 2012 for AY 2007-08, March 31,2012 for AY 2008-09, and March 31, 2013 for A Y 2009-1O. However, if above is not accepted. Your Honour may verify from the office of Learned CIT when the order of the CIT(A) was received by the Chief Commissioner I Commissioner as the case may be. In view of the forgoing, contention and facts of the present case, the Appellant humbly request Your Honor that the said penalty order be quashed and set aside as barred by limitation. 11. Per Contra Ld. Departmental Representative (DR) vehemently argued supporting the order of Ld. AO. 12. We have heard rival contentions and perused the record placed before us. The assessee has raised a legal ground challenging the validity of the impugned penalty orders passed u/s 271C of the Act contending that they are barred by limitation provided u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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