The Dy CIT, TDS Circle, Ahmedabad V. M/s. Hakmichand D & Sons, Ahmedabad

ITA 1321/AHD/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0088 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 18-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Non-deduction of tax

Judgement Text

ITA NOS.1319 TO 1323 /AHD/201 6 ASSESSMENT YEAR S : 200 6 - 07 TO 2009 - 10 & 2011 - 12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR , AM AND MAHAVIR PRASAD, JM ] I.T.A. NO S . 1319 TO 1323 /AHD/201 6 ASSESSMENT YEAR S : 2006 - 07, 2007 - 08, 2008 - 09, 2009 - 10 & 2011 - 12 DY. COMMISSIONER OF INCOME TAX, TDS CIRCLE , AHMEDABAD. . . . APPELLANT VS. HAKMICHAND D & SONS, .... ... .. RESPONDENT G/ 4, NITYANAND APARTMENTS, NEAR VAKIL W ADI, MANINAGAR, AHMEDABAD 380 008. [P AN: AACFH 5016 P] APPEARANCES BY: SUMIT KUMAR VER MA FOR THE APPELLANT S.N. S OPARKAR FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 0 8 . 11 .2016 DATE OF PRONOUNC ING THE ORDER : 09 . 1 1 .2016 O R D E R PER BENCH : 1. THE S E FIVE APPEALS, PERTAINING TO THE SAME ASSESSEE AND INVOLVING COMMON ISSUE S , ARE DIRECTED AGAINST LEARNED C IT(A) S CONSOLIDATED OR DER DATED 16.03.2016, IN THE MATTER OF PENALTIES UNDER SECTION 271C OF TH E INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEARS 2006 - 07 TO 2009 - 10 & 2011 - 12. ITA NOS.1319 TO 1323 /AHD/201 6 ASSESSMENT YEAR S : 200 6 - 07 TO 2009 - 10 & 2011 - 12 PAGE 2 OF 3 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS : - 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE PENALTY LEVIED U/S. 271C OF THE IT ACT OF RS. 16,70,935 / - FOR A.Y. 2006 - 07, RS. 49,60,334/ - FOR A.Y. 2007 - 08, RS. 49,54,480/ - FOR A.Y. 2008 - 09 , RS. 54,26,918 / - FOR A.Y. 2009 - 10, RS.33,48,69 9/ - FOR A.Y. 2011 - 12. INSPITE OF THE FACT THAT THE ASSESSEE MADE DEFAULT IN DEDUCTING TDS. 2. THE LD, CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TAX AT SOURCE ON LICENSE FEE PAID TO M/S INDIAN RAILWAYS CAT ERING .& TOURISM CORPORATION (IRCTC), WHICH FALL WITHIN THE PURVIEW OF SECTION 194J(L)(D) R.W.S. 28(VA)(B) OF THE I.T. ACT AND LIABLE FOR PENALTY U /S. 271C OF ACT FOR FAILURE TO DEDUCT TAX AT SOURCE. 3. THE LD. CIT(A) HAS ALSO CONFIRMED THE ORDER U/ S 201(1)/201(1A) OF THE I.T. PASSED BY THE A.O . IN APPEAL NO. CIT(A) - 8/360 TO 365/14 - 15 IN THE CASE OF ASSESSEE COMPANY ON THE SAME ISSUE. 5. THE APPELLANT CRAVES LEAVE TO AME ND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 6. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE CANCELLED AND THAT THE ADDL. CIT(TDS),AHMEDABAD MAY BE R ESTO RED TO THE ABOVE EFFECT. 3. VIDE OUR ORDER OF EVEN DATE , IN RESPECT OF DEMANDS RAISED ON THE ASSESS E E UNDER SEC T ION 201 R.W.S. 194J FOR THE ASSESSMENT YEARS 2006 - 07 TO 2011 - 12 , WE HAVE HELD THAT THE ASSESSEE DID NOT HAVE ANY LIABILITY TO DEDUCT TAX AT SOURCE FROM THE LICENCE FEE PAID TO IR CTC . IN COMING TO THIS CONCLUSION, WE H AVE FURTHER FOLLOW E D A CO - ORDINATE BENCH ORDER DATED 29.07.2016 IN ASSESSEE S OWN CASE IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3). 4. IN VIEW OF OUR ABOVE FINDING, THE V ERY FOUNDATION OF IMPUGNED PENALTIES CEASES TO BE DEVOID OF ANY LEGALLY SUSTAINABLE FOUNDATION. ONCE WE COME TO THE CONCLUSION TH AT ITA NOS.1319 TO 1323 /AHD/201 6 ASSESSMENT YEAR S : 200 6 - 07 TO 2009 - 10 & 2011 - 12 PAGE 3 OF 3 THE ASSESSEE DID NOT HAVE LIABILITY T O DEDUCT TAX A T SOURCE, AS WE HAVE CONCLUDED IN THIS CASE, THERE CANNOT BE ANY QUESTIO N OF PENALTY FOR NOT DEDUCTING TAX AT SOURCE. WE , THEREFORE, UPHOLD THE CONCLUSI ONS ARRIVED AT BY THE LE ARNED CIT(A), FOR THIS SHORT RE A SON ABOVE, AND DECLINE TO INTERFERE IN THE MATTER. 5 . IN THE RESULT, THE APPEALS ARE DISMISSED. PRONOUNC ED IN THE OPEN COURT TODAY ON 9 TH DAY OF NOVEMBER, 2016. SD/ - SD/ - MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 9 TH DAY OF NOVEMBER , 2016. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD