A SURTI DEVELOPERS P. LTD, MUMBAI V. ADDL CIT (TDS) RG 1, MUMBAI

ITA 4782/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2770 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-07-2014
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Keywords: Maximum Marginal Rate
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER I.T.A. NO. 4782/M/2014 (ASSESSMENT YEAR: 2009 - 2010 ) A SURTI DEVELOPERS PVT LTD., C/O. M/S. RAVI & DEV, CHARTERED ACCOUNTANTS, 601, A WING, AURUS CHAMBERS, BEHIND MAHINDRA TOWERS, S.S. AMRUTWAR MARG, WORLI, MUMBAI 400 013. / VS. ADDL. CIT (TDS), RANGE - 1, MUMBAI. ./ PAN : AAACA8288R ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SANJEEV MEHTA / RESPONDENT BY : SHRI A.B. KOLI, DR / DATE OF HEARING : 31 .08.2016 / DATE OF PRONOUNCEMENT : 23 .09.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 15.7.2014 IS AGAINST THE ORDER OF THE CIT (A) - 9, MUMBAI DATED 3.6.2014 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHIC H READ AS UNDER: 1. THE ORDER PASSED BY THE LD CIT (A), MUMBAI CONFIRMING THE LEVY OF PENALTY U/S 271C OF THE INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER IS BOTH BAD IN LAW AND BAD IN FACTS. 2. THE LD CIT (A) ERRED IN LAW AS WELL AS IN FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 16,96,382/ - U/S 271C OF THE INCOME TAX ACT, 1961 IN SPITE OF THE FACT THAT THE ASSESSEES QUANTUM APPEAL REGARDING LEVY OF TDS ON PAYMENT OF LEASE PREMIUM TO MMRDS WAS PENDING BEFORE THE CIT (A) - 12, MUMBAI AND THIS FAC T WAS IN KNOWLEDGE OF THE CIT (A). 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE PENALT Y U/S 271C OF THE ACT. BRIEF FACTS INCLUDE THAT IN THE ORDER U/S 201(1) / 201(1A) OF THE ACT, AO OBSERVED THAT THE ASSESSEE HAD MADE LEASE PREMIUM PAYMENT OF RS. 60,55,050/ - TO M/S. METROPOLITAN REGION DEVELOPMENT AUTHORITY (MMRDS). AO OPINED THAT THE SAME AMOUNT ATTRACTS TDS U/S 194I OF THE ACT. CONSIDERING THE ASSESSEES NON - COMPLIANCE OF THE PROVISION OF SECTION 194I OF THE ACT AS WELL AS THE ASSESSEES 2 FAILURE TO ESTABLISH THE REASON FOR NON - COMPLIANCE, AO LEVIED PENALTY OF RS. 16,96,382/ - U/S 271C OF THE ACT. AGGRIEVED, ASS ESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A). 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSI DERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) DISMISSED THE APPEAL. THEREFORE, ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. DURING THE PROCEEDINGS BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH THE FACT OF PENDING F INALIZATION OF THE QUANTUM APPEAL , REGARDING LEVY OF TDS ON PAYMENT OF LEASE PREMIUM TO MMRDA , BEFORE THE CIT (A) - 12, MUMBAI WAS BROUGHT TO THE NOTICE OF THE FIRST APPELLATE AUTHORITY, C IT (A) IGNORED THE SAME AND CONFIRMED THE PENALTY. HE FURTHER MENTION ED THAT THE FAA PASSED THE ORDER ON QUANTUM APPEAL ON 11.8.2014 AND THE APPEAL WAS ALLOWED . CONSIDERING THE SAME, I T IS THE SUBMISSION OF THE LD COUNSEL FOR THE ASSE SSEE THAT SINCE, THE QUANTUM APPEAL IS ALLOWED THE PENALTY LEVIED IN THIS REGARD IS REQUIR ED TO BE DELETED. 5. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US, WE FIND, THE ORDER OF FAA ON QUANTUM APPEAL WAS NOT AVAILABLE BEFORE THE CIT (A) AT THE TIME OF ADJUDICATION OF THE APPEAL ON THE ISSUE OF PENALTY U/S 271C . HOWEVER, IN THE QUANTUM APPEAL, CIT (A) - 12 GRANTED RELIEF TO THE ASSESSEE AND ALLOWED THE APPEAL . CONSIDERING THE SAME, THE P ENALTY LEVIED IN THE REGARD IS REQUIRED TO BE DELETED. WE ORDER ACCORDINGLY. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 2 3 R D SEPTEMBER, 2016. S D / - S D / - ( SAKTI JIT DEY ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 2 3 .09.2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI