2012 (8) TMI 366 - AT - Income Tax

Penalty u/s 271(1)(c) - addition made for dis-allowance u/s 40(a)(ia) - payments made to non-resident without TDS - addition however have been deleted during quantum appeal on ground that such payment was not chargeable to tax in India as the recipient has no PE in India - Held that - In the absence of an contrary material placed on record by the Revenue and in view of the fact that the quantum appeal has been decided in favour of the assessee, virtually the basis for imposition and levy of penalty u/s 271(1)(c) is not available. penalty deleted - Decided in favor of assessee.

Summary

Issues:
Penalty under section 271(1)(c) of the Income Tax Act, 1961 for non-deduction of tax on payments made to a non-resident.

Analysis:
The appeal was filed against the order passed by the ld. CIT (A) confirming the penalty imposed under section 271(1)(c) of the Income Tax Act, 1961, amounting to Rs. 12,50,942, for allegedly furnishing inaccurate particulars of income. The counsel for the assessee argued that the penalty should be deleted since the Tribunal had previously ruled in the quantum appeal that the payment made to a non-resident, which led to the penalty, was not subject to tax deduction at source. The Tribunal had determined that the payment was in the nature of business profit and not royalty, and the assessee was not required to deduct tax at source as the recipient did not have a Permanent Establishment (PE) in India.

The A.O. had disallowed the deduction claimed by the assessee for the payment made to Yahoo Holdings (Hong Kong) Ltd. as the tax was not deducted at the source. However, the Tribunal's previous order clarified that the payment was not taxable in India and, therefore, the non-deduction of tax was justified. Since there was no contrary material provided by the Revenue and the quantum appeal was decided in favor of the assessee, the basis for imposing the penalty under section 271(1)(c) was deemed invalid. Consequently, the penalty imposed by the A.O. and upheld by the ld. CIT(A) was deleted, and the assessee's appeal was allowed.

In conclusion, the Tribunal ruled in favor of the assessee, holding that the penalty under section 271(1)(c) of the Income Tax Act, 1961, for non-deduction of tax on payments made to a non-resident should be deleted due to the nature of the payment not attracting tax liability in India as per the earlier Tribunal order in the quantum appeal.