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TMI Blog2015 (8) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... n non-deduction of TDS, penalty was leviable u/Sec. 271C of the Act or not. It has not been disputed that fault of the assessee-respondent was detected only on account of survey carried out by the department. However, this issue needs to be gone into by the ITAT once again. Therefore, we quash & set aside the order of the ITAT impugned herein and remit the matter back to the ITAT for reconsideration afresh in accordance with law on merits after affording hearing to the parties without being influenced or inhibited by any of the observations made herein above. - Decided in favour of revenue for statistical purposes. - DB Income Tax Appeal No.584/2011 - - - Dated:- 30-7-2015 - MR. AJAY RASTOGI AND J.K. RANKA, JJ. For The Appellant : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting tax at source at all and consequently, a survey came to be conducted. It was found that the assessee was liable to deduct tax at source. It was admitted by the assessee that they were not aware of the provisions relating to deduction of tax at source and after the survey, deposited the entire amount admitting tax liability on 25/03/2005 to 22/07/2005. Notice u/Sec. 271C was issued as to why penalty may not be imposed. However, explanation was offered that the assessee was not aware of the provisions of TDS and default, if any, was bonafide and immediately when the officers brought to the notice of the assessee, the entire tax was deposited. Thus penalty ought not to have been levied but the AO imposed the penalty. 5. The assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducting tax at source prior to 16/02/2005 when survey operation on the premises of the assessee was carried and the assessee was making huge payments to various channels against airing fees. The demand of TDS and interest was created u/Sec. 194J of the Act, which was deposited by the assessee much after the date of survey. The ITAT, in its order observed that It was argued that the assessee is cooperating with the department by deducting and depositing TDS u/s 194-J as instructed by the A.O. vide letter dated 24.7.2005 to deposit balance amount @ 5% though the assessee had already deposited correct TDS @ 2.09% u/s 194C. It was stated that the TDS @ 2.091% u/s 194C comes to ₹ 6,11,809/-, whereas assessee had deposited TDS amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as claimed by the respondent-assessee from the record. Let the matter may come up before the Court on 15/10/2014, as prayed. 10. Subsequent to that, an additional affidavit was filed by one Balbir Singh Sisodia, who happens to be partner of the respondent-assessee and the material portion of the same is being reproduced here as under:- That during the course of hearing on dated 16.09.2014, this Hon'ble High Court directed the assessee to file along with relevant material as to whether for the Assessment Year 05-06 ( A.Y. for short) the amount of TDS was deposited in terms of Sec. 194C of the Income Tax Act ( the Act for short) before the date of survey dated i.e. 16.02.2005. That I have checked the accounts and the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y faint memory I instructed him that such amount of TDS was deposited u/s 194C of the Act even prior to 16.02.2005. 11. Thus, the contention of the counsel at one point of time on the observations of the ITAT was that even prior to the date of survey, they were deducting tax at source u/Sec. 194C, which was incorrectly observed and the affidavit reproduced herein above shows that whatever amount was deducted, was deducted after the date of survey. 12. In our view, on these facts and these are finding of fact, the order of the Tribunal on the aforesaid contradictions needs reconsideration and is to be restored back to the Tribunal for re-appreciating the facts once again as the Tribunal is the ultimate fact finding authority. 13. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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