TMI Blog2023 (1) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... of Nova Scotia [ 2016 (1) TMI 583 - SUPREME COURT] held that when the appellant s conduct is not contumacious then the penalty cannot be levied. This preposition has been consistently followed by lower authorities and in the case of CIT vs. ITOCHU Corp [ 2004 (5) TMI 53 - DELHI HIGH COURT] and CIT vs. Mistui Co. Ltd [ 2004 (5) TMI 17 - DELHI HIGH COURT] . Therefore we are unable to see any valid reason to interfere with the findings arrived by the Ld. CIT(A) and thus uphold the same resultantly appeal of revenue. - ITA Nos. 8063 & 8064/Del/2019 - - - Dated:- 20-1-2023 - SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER For the Revenue : Ms. Kirti Sankratyayan Sr.DR For the Assessee : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was rightly deleted by the Ld. CIT(A) by holding that it is not clear at all as to with regard to what payments the appellant did not deduct tax at source and when the AO himself is not sure at all, there is no question of levy of penalty u/s. 271C of the Act. The learned AR also submitted that the Ld. CIT(A) has rightly noted that the appellants conduct is not contumacious penalty cannot be levied u/s. 271C of the Act, as per judgment of Hon ble Supreme Court in the case of CIT vs. Bank of Nova Scotia 380 ITR 550 (SC) and judgement of Hon ble jurisdictional Delhi High Court in the case of CIT vs ITOCHU Corp., reported as 268 ITR 172 (Delhi) and CIT vs. Mistui Co. Ltd., reported as 272 ITR 545. 5. On careful consideration above subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 274 of the Income Tax Act, 1961 and penalty cannot be levied. In view of the aforesaid analysis, I am of the view that penalty amounting to Rs. 1,77,99,890/-, levied u/s 271C of the Income Tax Act, 1961 deserves to be deleted. 11. Since the penalty has been deleted, the appellant s additional ground/grievance of penalty being barred by limitation is not being considered. In final analyses, the appellant succeeds in appeal. 6. On careful and logical analysis of the basis taken by the AO for imposing penalty u/s. 271C of the Act and findings recorded by the Ld. CIT(A) for deleting said penalty. First of all we are in agreement with the Ld. CIT(A) that the AO himself was not sure at all as to with regard to what pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, the Ld CIT(A) has erred in giving relief to assessee that default u/s 201(1) of the Act cannot be fastened on a deductor if the amount has been included by the recipient in his income and tax thereon paid by him. However, the interest portion u/s 201(1A) of the Act for short/non-deduction is still lying due on the assessee. 8. The learned Senior Departmental Representative supporting the action of the AO submitted that the Assessing Officer rightly assumed that the assessee has paid/credited bills for hiring, others and purchases which was liable to TDS deduct at source in accordance with provision of section 194C/194J of the Act, on the amounts credited/paid to the respective recipients. The learned DR also contended that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er do not survive only on this count. However, in all fairness the Ld. CIT DR submitted that the Ld. CIT(A) could have called remand report from the AO on the required examination and verification of documents and thereafter he was required to adjudicate the first appeal. The learned senior DR submitted that the department has not serious objection if the Assessing Officer, after due examination and verification of the relevant documents decide the issue afresh after allowing due opportunity of hearing to the assessee. 11. On careful consideration of submissions we are of the considered view that as per provision of sub section 6 of section 250 of the Act, the Ld. CIT(A) is required to the adjudicate the appeal himself on the all grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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