TMI Blog2020 (4) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee s favour by several orders passed by the Tribunal including those by the Pune Benches. Under these circumstances, we condone the delay and take up the Cross objections for disposal on merits. Penalty u/s 271C - Non deduction of TDS on contractual payments - payee is Non Resident Indian (NRI) and the assessee is under statutory obligation to make the deduction of TDS at the rate of 40% - HELD THAT:- Assessee brought our attention to the various decisions and submitted that this is a covered issue by virtue of the order of the Bangalore Bench of the Tribunal in the case of ITO vs. Intel Tech India (P.) Ltd.. [ 2009 (4) TMI 546 - ITAT BANGALORE] . Assessee submitted that the levy of interest u/s 201(1)/201(1A) of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Delay 2. Before us, at the outset, ld. Counsel for the assessee submitted that both these appeals could not be filed in time and the said appeals are filed with the delay of 979 days. In this regard, ld. Counsel for the assessee filed an affidavit along with condonation of delay petition. 3. The Ld. AR of the assessee has referred to the decision of the Hon ble Bombay High Court in the case of Anil Kumar Nehru Vs. ACIT, Circle 16(2), Mumbai, Income Tax Appeal (L) No.1448 of 2016 dated 13th January, 2017 wherein the Hon ble High Court rejected the plea of the assessee of condonation of delay stating that reasons stated by the assessee is not bonafide reason and therefore, delay cannot be condoned. Thereafter, the assessee therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The same read as under :- 2. The Cross objection for the A.Y. 2008-09 is late by 1965 days. Similar cross objection filed by the assessee for the A.Y. 2009-10 is also late by 1018 days. The assessee has moved an application for condonation of delay. The ld. AR submitted that the assessee was not properly advised by its then counsel for espousing the legal issue now sought to be raised in the Cross objections, which is fundamental in nature. The ld. DR strongly opposed the condonation of delay. 3. It is seen that through the Cross objections, the assessee has raised a legal ground challenging the validity of assessment order passed u/s.143(3) r.w.s. 144C of the Income-tax Act, 1961 (hereinafter also called `the Act ). The moot po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appeal on merits. 5. Turning to the facts of the instant cases, we find that the assessee has raised a legal ground through these Cross objections, which goes to the root of the matter. It would be seen infra that the said legal issue is squarely covered in the assessee s favour by several orders passed by the Tribunal including those by the Pune Benches. Under these circumstances, we condone the delay and take up the Cross objections for disposal on merits. 6. Further, considering the judicial pronouncements as referred hereinabove, we condone the delay in respect of both these appeals and proceed to hear them on merits. B. On Merits 7. Before us, at the outset, ld. Counsel for the assessee submitted that this is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions requiring deduction of tax at source is noticed by him. Therefore, the payment of taxes by the payee, cannot provide any immunity from levy of penalty u/s 271C of the Act. 8. From the above, it is evident that the CIT(A) held that the payments of taxes made by the payee cannot absolve the defects in complying with the provisions of section 201(1)/201(1A) of the Act. 9. Before us, on the above facts, ld. Counsel for the assessee brought our attention to the various decisions and submitted that this is a covered issue by virtue of the order of the Bangalore Bench of the Tribunal in the case of ITO vs. Intel Tech India (P.) Ltd., 32 SOT 227 (An USA based company). The ld. Counsel submitted that the levy of interest u/s 201(1)/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Discrimination Article is provided by way of Article 25 of the India-Indonesia Treaty whereby the non-resident assessee has to be treated as part with domestic entities. In other words, the judgment of the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverage (P.) Ltd. (supra) is equal applicable to the case of a non-resident like the present deductee. The held portion of the said judgement of the Hon ble Supreme Court (supra) reads as follows :- The Circular No.275/201/95-IT(B), dated 29-1-1997 issued by the Central Board of Direct Taxes would put an end to the controversy. The circular dealers that no demand visualized under section 201(1) should be enforced after the tax deductor has satisfied the officer-in-charge of TD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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