9911796707
Advanced Search 
TMI Blog2017 (11) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. 3. Brief facts are, the assessee a company is engaged in the business of freight forwarding, logistics and transportation by air, road and sea. To verify assessee's compliance to Tax Deduction at Source (TDS) on various payments made, a survey under section 133A was conducted on the assessee and on the basis of information obtained during the survey the Assessing Officer found that the assessee has not deducted tax at source on payments made during the year towards handling fees for air exports, air imports, ocean exports, ocean imports and customs clearance. Accordingly, he initiated proceedings under section 201(1)/201(1A) by issuing a show cause notice on 17.02.2012. As observed by the Assessing Officer, after initial noncompliance the assessee finally submitted its reply on 27.03.2012 furnishing some details alongwith sample copies of Form 16A evidencing TDS. The Assessing Officer, however, found the details furnished by the assessee insufficient. Thus, he finally concluded that the assessee has failed to deduct tax at source on payment of handling fees of Rs. 36,88,76,120/- on which the assessee was liable to deduct tax at source @2% as per section 194C of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessee was represented through its employees only. The learned A.R. submitted, by not filing the appeals in time the assessee has not gained any advantage, rather, it has been put to a disadvantageous position. He submitted, the expression 'sufficient cause' has to be interpreted liberally to subserve the cause of justice. In support of his contention the learned A.R. relied upon the decision of the Hon'ble Supreme Court in the case of N. Balakrishnan v/s. M. Krishnamoorthy in judgement dated 03.09.1998. 5. The learned Departmental Representative(D.R.) supporting the order of the CIT(A) submitted, the assessee having not shown reasonable cause for delay in filing the appeals the First Appellate Authority was justified in dismissing assessee's appeals on the ground of delay. 6. We have considered the rival submissions and perused the materials on record in the light of the decision relied upon. Undisputedly, as per assessee's own admission there was a delay of 217 days in filing the appeals before the Commissioner (Appeals). The cause of delay as explained by the assessee before Commissioner (Appeals) as well as before us through an affidavit filed and also in the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he follow up action taken in such matters. Not doing so reveals laxity on the part of the assessee, to some extent, for which the opposite party (Revenue) should not suffer, as, again it has go through the rigmarole of the same judicial process resulting in wastage of valuable time. For the aforesaid laxity on the part of the assessee, the Revenue has to be compensated. In this context, we refer to the jugement of the Hon'ble Supreme Court in the case N. Balakrishnan V/s. M. Kirshanmoorty (supra) cited before us by the learned A.R. In view of the aforesaid, though, we are inclined to condone the delay of 217 days in filing the appeals before the CIT(A), however, we direct the assessee to pay cost of Rs. 10,000/- for each of the appeals to the Revenue. On payment of cost as directed above and furnishing the proof before the concerned authority, assessee's appeals shall be taken up for hearing by the learned Commissioner (Appeals) and decided on merit after due opportunity of being heard to the assessee. Since, we are remitting the matters back to the Commissioner (Appeals), all issues on merits are kept open to be raised before the CIT(A) for adjudication. Grounds are allowed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t automatic as it has to be levied in consonance with the provision contained under section 273B of the Act. He submitted, the assessee has been in this business for more than a decade and such payments have been made to the overseas group entities from the very inception of its business. He submitted, the service fees were paid to overseas group entities for transportation of goods carried outside India. Therefore, such income in the hands of the overseas group entities accrues/arises outside India. Since, the overseas entities have no Permanent Establishment in India, their income is not taxable in India. The learned Authorized Representative submitted before making such payment the assessee has obtained a certificate from an independent Chartered Accountant in Form no. 15CB wherein it was certified that such payments do not require deduction of tax at source and relying upon such certificate assessee has not deducted tax at source on the payment made. Further, learned Authorized Representative submitted, though, in past years the assessee has made similar payments to overseas group entities without deducting tax at source, the department never passed any orders under section 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record that, though, the assessee has made payment of identical nature to overseas group entities in past several years without deducting tax at source, no proceedings has been initiated by the Department under section 201(1), except assessment years 2010-11 and 2011-12. In as much as, no disallowance under section 40(i)(a) has ever been made. Even though, similar payment was made in A.Y. 2010-11 and facts for both the assessment years are identical, the Assessing Officer has not initiated proceedings for imposition of penalty under section 271C of the Act for A.Y. 2010-11. Thus, on a conspectus of aforesaid facts, without entering into the controversy as to whether TDS provisions are applicable or not to such payment, one can reasonably conclude that the failure on the part of the assessee to deduct tax at source while making such payment was for bona fide reasons, hence, in terms of section 273B of the Act there being a reasonable cause for such failure, no penalty can be imposed under section 271C of the Act. Accordingly, we uphold the order of the CIT(A) on this issue by dismissing the grounds raised. 12. In view of our aforesaid decision in Department's appeal, the Cross Ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
