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TMI Blog2019 (1) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... cost @ 60% - Held that:- We find substantial weight in the contention of the assessee. It is notable that complete details/facts relating to the assets on which depreciation was claimed were furnished before the Assessing Officer and as such it can hardly be said that the assessee has furnished inaccurate particulars of income merely because the claim of assessee was not, in the opinion of Assessing Officer, sustainable in law. For this view, we stand fortified by the decision of Hon’ble Supreme Court in the case of Reliance Petroproducts Pvt. Ltd.(2010 (3) TMI 80 - SUPREME COURT). - Appeal of assessee allowed. - ITA No. 6514/Del/2014 - - - Dated:- 16-1-2019 - Shri Amit Shukla, Judicial Member And Shri L.P. Sahu, Accountant Member For the Appellant : Sh. Tarandeep Singh, Advocate For the Respondent : Sh. Sridhar Dora, Sr. DR ORDER PER L.P. SAHU, A.M.: This is an appeal filed by the assessee against the order of ld. CIT(A)-XX, New Delhi dated 15.09.2014 for the assessment year 2009-10 on the following grounds : 1. That on the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in upholding the penalty order under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and deserves to be quashed on this ground alone. Penalty in respect of Payment Gateway Charges disallowed under section 40(a)(ia) 6. The Ld. CIT(A) on the facts and circumstances of the case and in law has erred in upholding penalty of ₹ 2,85,12,768 under Section 271(l)(c) of the Act on disallowance of the payment gateway charges retained/paid to Indian banks, without appreciating the fact that: i) The issue whether TDS is required to be deducted on payment gateway charges retained/paid to banks is controversial, debatable and litigative and various decisions of Hon ble ITAT have held that on similar payments there is no requirement of TDS. ii) The provisions of Section 194H are not applicable to the amount paid/retained to/by the banks for providing Payment Gateway facilities and hence there was no requirement of TDS under section 194H of the Act. iii) Since inception no TDS was being deducted by the Appellant on the payment gateway/authentication charges retained by the banks under a bonafide belief that such payments are not subject to TDS under any provisions of the Act. Further, this position was never disputed by the tax authorities prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on website Development cost. (iii). Excess depreciation on computer peripherals Aggrieved by the impugned order sustaining penalty imposed on the additions made in the above heads, the assessee is in appeal before the Tribunal. 3. We have heard the submissions of both the parties and have gone through the entire material available on record. 4. A perusal of the assessment order reveals that the Assessing Officer had disallowed the entire payment gateway charges of ₹ 12,52,49,946/- on the premise that the said payment was made without deducting tax at source u/s. 194H of the Act like commission and brokerage, liable to be disallowed u/s. 40(a)(ia) of the Act. The contention of the assessee has been that in the quantum appeal, this issue has been decided by ITAT in assessee s own case by the Tribunal for the year under consideration vide order dated 26.09.2017 (ITA No. 4721/Del/2014). The relevant observations of ITAT read as under : On consideration of the rival submissions in the light of the earlier order of the Tribunal dated 30th January, 2017. (supra) we find that this issue is already decided in favour of the assessee by the Tribunal following the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after following order of CIT(A) for earlier A.Y. 2007-08 and of Tribunal for A.Y. 2004-05 and accordingly made disallowance of depreciation of ₹ 1,76,18,474/-. The contention of the ld. AR is that this is a debatable issue. While the Tribunal allowed depreciation @ 25% in 2004-05 but in appeal for A.Yrs.2005-06 and 2006-07 in case of assessee itself, the issue has been decided in favour of the assessee after following the decision of Special Bench of Tribunal in the case of Amway India Enterprise, 114 TTJ 476 (SB) which has been upheld by Hon ble Delhi High Court. Therefore, the penalty imposed only on the basis of rate difference of depreciation, cannot be sustained as held in various decisions. The ld. DR supported the observations of the ld. authorities below on this count. We, however, observe that there being difference in opinions of various authorities on the rate of depreciation on website development cost as narrated above, it cannot be made to be the sole basis for imposition of penalty for furnishing inaccurate particulars of income. The revenue could not make out any case that the assessee did not furnish all material facts before the ld. authorities below pertai ..... 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