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TMI Blog2018 (12) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice. i. That the Ld. CIT (A) erred by not appreciating that the Appellant was not given an opportunity of being heard as prescribed under Section 274 of the Income Tax Act, 1961 („the Act‟). ii. That the Ld CIT (A) failed to appreciate that the penalty has been imposed pursuant to the Show Cause Notice („SCN‟) dated 8.8.2013 received by the Appellant on 16.8.2013 with hearing date of 16.8.2013 itself. The appellant vide its letter dated 23.8.2013 has requested the Ld. JCIT that since the notice is received around closure of business hours on 16.8.2013 with date of hearing of 16.8.2013 itself which was denied. iii. That the Ld CIT (A) failed to appreciate that hearings on on 26.4.2013, 16.5.2013 and 20.5.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged non deduction of tax at source. E. That the Ld. CIT (A) erred in holding that the assessee company has defaulted in complying with Section 194J of the Act in respect of in-sharing expenses. F. That the Ld. CIT (A) failed to appreciate that the credits/payments were made only on 31.03.2009 and at that time there was a certificate under Section 197(1) dated 10.12.2008 in favour of the payee requiring no deduction of tax under Section 194J of the Act and that the date of invoice is immaterial. G. That the Ld. CIT (A) failed to appreciate that since no tax was payable by the deductee, no amount was liable to be deducted and there was no short payment of tax. H. That the Ld. CIT (A) failed to consider that as the deductee was assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2013 was submitted requesting to drop the penalty proceedings as there is no default or compliance and further the company is not held to be an assessee in default under section 201 (one) of the act. Further submission was made that the amount of Rs. 19 9984945/- was assumed offered by the company to tax in the return of income for FY 2008 - 09 on account of certain under certain liabilities were tedious could not be deducted and deposited as neither the recipient were certain and nor the amount payable were crystallized. It was further stated that the aforesaid amount was based on accounting estimates and subsequently on the liability being crystallized, the company has duly deducted and deposited the applicable tax deduction at source t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply in explanation furnished by the assessee the learned adjudicating officer held that assessee has no reasonable cause for non-deduction of tax at source amounting to Rs. 1 6189782/- during the financial year 2008 - 09 and held that failure to deduct tax at source was due to deliberate negligence on the part of the deduct and negligence has no excuse in law. Accordingly he levied a penalty of Rs. 1 6189782/- under section 271C of the act by the order dated 23/8/2013. 4. The assessee aggrieved with the order of the learned adjudicating officer has preferred an appeal before the learned Commissioner of income tax appeals - 41, New Delhi. He confirmed the penalty order. Therefore, the assessee aggrieved with the order of the learned CIT - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the lower authorities and submitted that assessee has failed to deduct tax at source under section 194J of the act and has also not shown any reasonable cause for non-deduction of tax at source and therefore the penalty has rightly been levied by the lower authorities under section 271C of the act. 7. We have carefully considered the rival contention and perused the orders of the lower authorities. The brief facts of the cases that the assessee has claimed deduction of in sharing expenses to the tune of Rs. 1 69369687 on which there existed the tax liability to deduct tax under section 194J at the rate of 10%. The appellant paid these expenses to Tata teleservices Ltd but has not deducted tax at source on the said payment as Tata tel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Appellate Tribunal. The Income Tax Appellate Tribunal vide order dated 31.03.2006 entered the following findings: "11. We have carefully considered the rival submissions. In the instant case we are not dealing with collection of tax u/s 201(1) or compensatory interest u/s 201(1A). The case of the assessee is that these amounts have already been paid so as to end dispute with Revenue. In the present appeals we are concerned with levy of penalty u/s 271-C for which it is necessary to establish that there was contumacious conduct on the part of the assessee. We find that on similar facts Hon'ble Delhi High Court have deleted levy of penalty u/s 271-C in the case of Itochu Corporation 268 ITR 172 (Del) and in the case of CIT v. Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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