TMI Blog2023 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of this consolidated order for convenience. 2. Grounds are identical in all the appeals and for the sake of brevity, grounds in ITA No.99/Jab/2023 for the Assessment Year 2010-11 are reproduced as under:- 1. The order passed by Ld. CIT(A)- NFAC under section 250 of the I. T. Act 1961 is bad in law and in facts and liable to be quashed. 2. The Ld. CIT(A)-NFAC has erred on facts and in law in conforming levy of penalty of Rs. 4,04,312/- under section 271(c) of the I. T. Act i.e the Ld. CTT(A) has erred both in law and in facts in upholding the impugned penalty order passed by Ld. AO is arbitrarily, unjustly and without basis in levying penalty of Rs. 4,04,312/- u/s 271 C of the IT Act. 3. The CIT(A) has erred in law and on facts in confirming the penalty of Rs. 4,04,312/- levied u/s 271 C of the Act as same was done despite the fact that the quantum additions for non deduction of TDS have already been deleted by the CIT(A) followed by dismissal of revenue appeal by Hon'ble ITAT which clearly proves that the assessee. had not defaulted in any of TDS deduction. Accordingly Penalty u/s 271 C was, not correctly levied and may kindly be quashed/deleted. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide letter dated 07/09/2015. Once again next date of hearing was given on 21/09/2015. Since months have passed no response to the query raised the order u/s 201(1)/201(1A is to be passed as on going through the audit report filed, following payment debited in the P L accounts attract deduction of tax at source. The deductor is therefore treated to be in assessee in default u/s 201(1) of Income tax Act 1961. The deductor is liable to pay TDS as under:- Heads of account Sect 2009-10 2010-11 2011-12 2012-13 2013-14 Legal Charges 194J 72000 72000 96000 Audit Accounting 194J 72000 Interest on USL 194A 63000 71400 500400 480542 590512 Advertise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Penalty proceedings u/s 271C Section 272BB(1) provides for penalty for failure to obtain TAN of the I.T.Act, 1961 are being separately initiated in this case and for this purpose, the case is being referred to the Addl. Commissioner of Income-tax (TDS), Bhopal for initiation of penalty. 4. The AO also initiated penalty u/s 271C of the Act. However, on appeal against the order passed u/s 201(1)/201(1A) of the Act dated 15.12.2015, Ld.CIT(A) deleted the said liability by observing as under:- 6.1.3. Decision:- I have carefully considered the submission put forth the documents furnished on behalf of the appellant, perused the facts of the case and these grounds relating to the legality of the order passed is bad in law are decided as under- (i) The assessee has challenged the validity of the order passed under section 201(1)/201(1A) on 15.12.2015 for the reason that the assessee is not liable to deduct TDS in the financial year 2009-10 and also for the reason that ITO(TDS), Jabalpur-II has not worked out quarter wise TDS liability. (ii) Smt Dr. Sunanda Dawar Sharma, the wife of the assessee, was not keeping good health and was not in a position to run M/s Shub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment is relevant: In the case of CIT Bangalore Vs. Infosys Technologies Limited (2008) 297 ITR 167/214 CTR293/166 Taxman 204 the Hon'ble Supreme Court in para 6 of the said judgment cited the following:- 6. In the case of Govind Saran Ganga Saran Vs. CST[1985] 155 ITR 144 this Court held that there are four components of tax. The first component is the character of the imposition, the second is the person on whom the levy is imposed, the third is the rate at which tax is imposed and the fourth is the value to which the rate is applied for computing tax liability. It was further held that if there is ambiguity in any of the four concept then levy would fail. In view of above, the levy of tax is bound to fall if the charge is vague. Since specific quarter has not been indicated, accordingly the charge for 4th Qtr. Which is unspecified fails on this count. 2. Further, the manner of performing a statutory act, once defined cannot be twisted to suit one's own perception. The following legal enunciations clarify this: I.RAMCHANDRA KESHAV ADKE ORSVS.GOVIND JOTI CHAVARE AND ORS.AIR 1975 SC 915.1975 SCR (3)839. 1975 scc(1) 559 DATE OF JUDGMENT04/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her course is not permissible. [See Taylor vs. Taylor (1876) 1 Ch.D.426; Nazir Ahmed vs. King Emperor AIR 1936 PC 253; Ram PhalKunduvs.Kamal Sharma; and Indian Bank's Association vs. Devkala Consultancy Service AIR 2004 SC2615]. IV. CIT vs. SPL'S SIDDHARTHA LTD. (2012) 345 ITR 0223(DELHI) EXTRACTS: 7 It is trite that when a statute requires, a thing to be done in a certain manner, it shall be done in that manner alone and the Court would not expect its being done in some Commissioner offer manner. It was so held in the following decisions: (1)CIT Vs.Naveen Khanna(dated 18.11.2009 in ITANo.21/2009 (DHC). ii) State of Bihar Vs. J.A.C. Saldanna Drs. AIR (1980) SC326. (iii) State of GujratvsShantilalMangaldas, AIR [1969] SCN 634. 8. Thus, if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the Act authorised under other circumstances than those as defined. E. It is accordingly held that the order of the AO suffers from two fatal legal infirmities: (i) The charge for the financial year is vague and is in violation of the ruling of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
