2019 (9) TMI 348 - AT - Income Tax

Levy of penalty u/s 271(1)(c) - books of account as per section 145 rejected and calculated disallowance under section 40(a)(ia) of the Act for non-deduction of TDS u/s 195 - HELD THAT - It is pertinent to observe that while passing assessment order Ld.AO initiated penalty proceedings without referring to any charge as to for concealment of income or filing of inaccurate particulars of income . Further Ld.AO subsequent to order passed by Ld. CIT (A) passes penalty order, wherein penalty has been levied for deliberateness of tax evasion , which in our considered opinion is not at all the requirement of Sec.271(1)(c ) of the IT Act. Be that as it may, it is observed that Hon ble High Court for year under consideration admitted substantial questions of law by which addition itself becomes debatable. On perusal of decision relied upon by Ld.AR in case of CIT vs Ankita Electronics Pvt Ltd 2015 (3) TMI 1029 - KARNATAKA HIGH COURT and CIT vs Dr Hirsha N. Biliangady 2015 (3) TMI 1146 - KARNATAKA HIGH COURT additions in respect of which penalty was confirmed has been accepted by Hon ble Karnataka High Court, leading to substantial question of law. Thus when Hon ble High Court admitted substantial question of law on additions, it becomes apparent that issue is certainly debatable. In such circumstances penalty cannot be levied under section 271 (1) (c) of the Act. - Decided in favour of assessee.

Issues:
1. Levy of penalty under section 271(1)(c) of the Income Tax Act.
2. Disallowance under section 40(a)(ia) of the Act.
3. Nature of payments under the AdWord Distributor Agreement.
4. Validity of notice issued under section 274.
5. Appeal against the order passed by the Ld.CIT (A).

Issue 1 - Levy of penalty under section 271(1)(c) of the Income Tax Act:
The Appellate Tribunal considered the penalty appeal filed by the assessee against the order passed by the Ld. CIT (A). The grounds of appeal included challenging the levy of penalty under section 271(1)(c) of the Act on various disallowances and additions made by the assessing officer. The Tribunal observed that the penalty was imposed without specifying the charge for "concealment of income" or "filing inaccurate particulars of income." Additionally, the High Court admitted substantial questions of law related to the additions, indicating a debatable issue. Relying on previous decisions, the Tribunal concluded that since the High Court admitted substantial questions of law on the additions, the penalty under section 271(1)(c) could not be justified, and thus, the penalty was deleted.

Issue 2 - Disallowance under section 40(a)(ia) of the Act:
The assessing officer disallowed certain payments made by the assessee under the AdWord Distributor Agreement for non-deduction of TDS. The Tribunal noted conflicting arguments regarding the nature of these payments, with the revenue contending that they constituted royalty payments, while the assessee argued they were business profits. Ultimately, the Tribunal found in favor of the assessee, stating that the issue was debatable, as evidenced by the High Court admitting substantial questions of law related to the payments. Consequently, the penalty imposed for alleged tax evasion was deemed unjustified and was deleted.

Issue 3 - Nature of payments under the AdWord Distributor Agreement:
The Tribunal analyzed the nature of payments made by the assessee under the AdWord Distributor Agreement. The revenue argued that the payments were for the usage of trademark, intellectual property rights, and processes, constituting royalty. In contrast, the assessee contended that the payments were business profits and not royalty. The Tribunal considered the arguments and found the issue debatable, especially since the High Court admitted substantial questions of law related to the payments. Consequently, the penalty imposed for alleged tax evasion was deemed unwarranted and was deleted.

Issue 4 - Validity of notice issued under section 274:
The assessee raised a ground challenging the validity of the notice issued under section 274, alleging that it did not specify the exact reason for initiating penalty proceedings. The Tribunal did not delve deeply into this issue in the summary provided.

Issue 5 - Appeal against the order passed by the Ld.CIT (A):
The assessee appealed against the order passed by the Ld.CIT (A), which confirmed the penalty imposed by the assessing officer. The Tribunal reviewed the arguments and evidence presented by both parties and concluded that the penalty was unjustified due to the debatable nature of the issues involved. The Tribunal ultimately allowed the appeal filed by the assessee, overturning the penalty imposed.

In conclusion, the Appellate Tribunal, in the case under consideration, examined various grounds of appeal related to the levy of penalties under the Income Tax Act, disallowances under specific sections, and the nature of payments made under agreements. The Tribunal emphasized the debatable nature of the issues and the admission of substantial questions of law by the High Court, leading to the deletion of the penalties imposed on the assessee.

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