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TMI Blog2014 (5) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... HRI HARI OM MARATHA AND SHRI N.K. SAINI, JJ. For the Appellant : Dr. Deepak Sehgal- D.R. For the Respondent : Shri Kishan Goyal ORDER PER N.K.SAINI, A.M These two appeals by the department are directed against the separate orders dated 17/10/2013 and 28/11/2013 of ld. CIT (A), Jodhpur for the A.Y. 2008-09 2009-10 respectively. The issue involved in these appeals is common and the appeals were heard together so these are being disposed off by this consolidated order for the sake of convenience. The common grounds have been raised in these appeals, are as under: 1. Whether on the facts and in the circumstances of the case, the Learned CIT(A) was correct in cancelling the penalty u/s 271C following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of M/s Oil India Ltd., Jodhpur u/s 133A on 04/3/2009 and 5/3/2009. The DCIT (TDS), passed impugned order u/s 201/201(A) on 21/12/2009 in which it has been inter alia held that M/s Oil India Ltd. ought to have deducted tax at source at higher rate u/s 194J as the payments to the contractors were made for technical services rendered to the company as against the tax deducted at source by M/s Oil India Ltd. u/s 194C by treating the same simple contract works . The authority passing such impugned order invoked section 194I in relation to certain payments made to two parties for use of their cranes. It was further submitted that the appellant had preferred appeal before CIT(A), who by order dated 31/10/2011 uphold the applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der:- 08- From the above findings of the Hon'ble ITAT, it is clear that tax liability raised in the order u/s 201/201(1A) dated 21/12/2009 have been deleted and decisions of CIT(A) on the issues of non deduction of TDS as per section 194J and 194I have been reversed. After the decision of Hon'ble ITAT, the very basis for levying tax liabilities do not exist anymore, therefore, penalty imposed in itself become infructuous. The penalty dated 7/6/2012 passed is hereby annulled. The grounds of appeal are allowed. 5. On the similar reasoning, the penalty levied u/s 271C of the Act for the A.Y. 2009-10 was also deleted. Now the department is in appeal. 6. The learned counsel for the assessee at the very outset stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all for levying penalty for concealment and, therefore, in such a case no penalty can survive and the penalty is liable to be cancelled. Ordinarily, penalty cannot stand if the assessment itself is set aside. 9. In the present case also, we have already pointed out that the very basis for levying tax liabilities u/s 201/201(1A) of the Act does not exist anymore, therefore, penalty u/s 271C of the Act was not leviable and the learned CIT(A) was fully justified in deleting the same. In that view of the matter, we do not see any valid ground to interfere with the findings given by the learned CIT(A) and accordingly, do not see any merit in these appeals of the department. 10. In the result, appeals are dismissed. (Order Pronounced in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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