9911796707
TMI Blog2023 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... idated order for convenience. 2. Grounds are identical in all the appeals and for the sake of brevity, grounds in ITA No.99/Jab/2023 for the Assessment Year 2010-11 are reproduced as under:- 1. "The order passed by Ld. CIT(A)- NFAC under section 250 of the I. T. Act 1961 is bad in law and in facts and liable to be quashed. 2. The Ld. CIT(A)-NFAC has erred on facts and in law in conforming levy of penalty of Rs. 4,04,312/- under section 271(c) of the I. T. Act i.e the Ld. CTT(A) has erred both in law and in facts in upholding the impugned penalty order passed by Ld. AO is arbitrarily, unjustly and without basis in levying penalty of Rs. 4,04,312/- u/s 271 C of the IT Act. 3. The CIT(A) has erred in law and on facts in confirming the penalty of Rs. 4,04,312/- levied u/s 271 C of the Act as same was done despite the fact that the quantum additions for non deduction of TDS have already been deleted by the CIT(A) followed by dismissal of revenue appeal by Hon'ble ITAT which clearly proves that the assessee. had not defaulted in any of TDS deduction. Accordingly Penalty u/s 271 C was, not correctly levied and may kindly be quashed/deleted. 4. The appellant prays that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of hearing was given on 21/09/2015. Since months have passed no response to the query raised the order u/s 201(1)/201(1A is to be passed as on going through the audit report filed, following payment debited in the P & L accounts attract deduction of tax at source. The deductor is therefore treated to be in assessee in default u/s 201(1) of Income tax Act 1961. The deductor is liable to pay TDS as under:- Heads of account Sect 2009-10 2010-11 2011-12 2012-13 2013-14 Legal Charges 194J 72000 72000 96000 Audit & Accounting 194J 72000 Interest on USL 194A 63000 71400 500400 480542 590512 Advertisement& promotion 194C 35800 89500 110800 156412 256858 Reporting to Doctors 194J 531626 653014 643117 768541 986854 Referral expenses 194J 555122 407059 428179 586585 Hospital Revenue/Rent 194I 1391136 1433912 1714118 1754741 1379188 TDS with interest payable 695417 896944 1020459 995633 984064 As the assessee has not submitted ay PAN of the deductee each default was calculated at the rate of 20%. Thus, the deduct is liable to pay TDS year wise is as under:- Year wise demand u/s 201(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44AB in the assessment year 2010-11 and the accounts of the assessee were audited first time in the assessment year 2010- 11. The DCIT(TDS) has worked out the liability of the assessee under section 194A, 194C, 194J and 1941 of the Act. All these sections provides that an individual or HUF is required to deduct TDS if the turnover of the individual or HUF in the financial year immediately preceding the financial year in which the payment is made exceed the limit prescribed under section 44AB. Since the assessment year 2010-11 is first year of audit hence in view of the provision of these sections the assessee is not liable to deduct TDS in the assessment year 2010-11. Accordingly, the DCIT(TDS) was not justified in holding that the assessee was liable to deduct TDS in the assessment year 2010-11. In result, this submission of the assessee is accepted and accordingly the order passed under section 201(1)/ 201(1A) dated 15.12.2015 is held to be bad in law hence the same is cancelled. (iii) In the 2nd submission the assessee has submitted that as the DCIT(TDS) has not worked out liability quarter wise but contrary to provision of law has worked out liability for full financial y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." II.CIT vs. SMT. PHOOLMATI DEVI(1983) 144 ITR 09S4 (ALLD) EXTRACT 6. When a statute requires that something shall be done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, the omission of not doing that in the manner prescribed in some cases has been held fatal to its validity. In the present case, .. 9. Relying upon s. 292B of the IT Act inserted by the Taxation Laws (Amendment) Act, 1975, the learned counsel submitted that the defect of non-service of notice was fairly a technical objection and as such the same should not come in the way of the validity of the acquisition. We are unable to agree. Section. 292B may apply to a case where service has already been effected, but there is a technical mistake in the notice. But where, as here, no notice has been served, this section will not come to the rescue of the Department. Moreover, this section came into force w.e.f. 1st Oct., 1975, whereas the proceedings in the instant case had been initiated earlier. For this reason also this section will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order as suffering from vagueness which is fatal in nature. Detailed submissions regarding vagueness have already been given in A.Y. 2011-12 which has been decided as above. The line of reasoning and the submissions of the assessee in that year are squarely applicable in this year as well. The same are already reproduced above and need not be repeated. It is accordingly held that the order suffers from vagueness and the AO was not legally empowered to pass a consolidated order for all the quarters whereas each quarter constitutes a separate assessment unit. This is neither a procedural error nor rectifiable under any other provision of the Act. It goes to the core of the matter and makes assumption of jurisdiction fatally faulty in nature. Accordingly, the order is hereby annulled and the appeal of the assessee is allowed. No decision is made on merits as the legal plea stands allowed." The factual position of the case of the assessee is similar to that of ACC Ltd. Hence, in view of the decision of Id CIT(A) the case of ACC Ltd. the order passed by DCIT(TDS) under section 201(1)/201(1A) on 15.12.2015 in the case of assessee is bad in law and accordingly is annulled. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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