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TMI Blog2012 (3) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... unds:- "1) The Ld. Commissioner of Income-tax (Appeals)-XV, Ahmedabad has erred in laws and on facts in deleting the penalty of ₹ 4,44,510/- levied u/s. 271(1)(c) of the Act. 2) On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-XV, Ahmedabad ought to have upheld the order of the Assessing Officer." In the present case assessment u/s 143(3) of the Act was completed vide assessment order dated 24-10-2008. During the course of assessment proceedings, the Assessing Officer noticed that the assessee has not deducted tax at source as per the provisions of 194C of the Act. The assessee was, therefore vide letter dated 10-10-2008 was asked to explain why expenses as claimed should not be disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t source of ₹ 25,132/- along with interest of ₹ 6814/- is paid by us on 1.12.2008. Your goodself has taken a view for ₹ 6,18,300/- that tax deductible on the different dates during the previous year ended on 31.3.006 and expenditure of ₹ 7,94,590/- on which deduction of tax at source was not made therefore expenditure was not admissible in computation of the total income for the A.Y. 2006-07 in view of Section 40(a)(ia). It is further submitted that your goodself has disallowed ₹ 87,480/- in respect of machinery purchased claimed as material purchase and the assessee had in the reply of show cause accepted that it has been claimed out of mistake as expenditure and with no intention not concealment of income. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er details and/or information as may require by your goodself on hearing from you." The Assessing Officer was not convinced with the reply and levied minimum penalty of ₹ 4,44,510/- u/s 271(1)(c) . 3. The assessee feeling aggrieved by the order dated 17-04-2009 preferred an appeal before Ld. CIT(A), Ld. CIT(A) in his order dated 16-09-2011 and was pleased to observe as under:- "3. It is seen that out of ₹ 13,20,588 TDS in respect of ₹ 6,18,300 has been deposited in government account on 24.4.2006 that is before the due date of filing of return, and is thus covered by Hon'ble ITAT decision in the case of Kanubhai Ramjibhai vs. ITO reported in 49 DTF 70 (Ahd) (Trib.)." The Ld. CIT(A) after considering the submissions ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce amount is concerned it was not deposited even before the due date of filing of return of income. Therefore, the benefit of depositing the same even before filing of income tax return is not available with assessee. The AR for the assessee has relied upon the decision passed in ITA No.1670/Ahd/2009 in the case of M/s. Dutt Products (supra) and in ITA No.6196 and 6197/Mum/2010 in the case of M/s H.S. Engineering & Marketing (supra). 5. We have considered the rival submissions as made by Departmental Representative and the Authorized Representative. Admittedly this is not the case wherein the claim as made by the assessee was allowable under any provision of Act. The assessee was required to deduct tax at source (TDS in short) in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the last day of the previous year:" As per this amended provisions also for TDS deducted prior to last month of the previous year, payment has to be made on or before the last day of the previous year. Prior to this retrospective amendment, provisions in the statute book at the time of filing return of income on 16-10-2006 were as under:- "(ia) any interest, commission or brokerage, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contactor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVIII-B and such tax has not been deducted or, after deduction, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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