Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, AHMEDABAD ‘D’ BENCH, AHMEDABAD
By way of this appeal, the Assessing Officer has challenged correctness of the order dated 24th November 2016 passed by the learned CIT(A)-8, Ahmedabad deleting the penalty of Rs. 2,85,68,562/-imposed on the assessee under section 271C r.w.s. 263 of the Income-tax Act, 1961, for the assessment year 2008-09.
Grievances raised by the appellant Assessing Officer are as follows:-
“1. The Ld. CIT(A) has erred on facts and in law in deleting the penalty u/s 271C although demand raised u/s 201(1)/201(1A) of the I.T. Act on roaming charges paid to other telecom companies upheld by the CIT(A).
On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have decided the issue under reference, in the light of evidence obtained by him during the appellate proceedings after following the due procedure of law.”
When this appeal was called out for hearing, learned counsel for the assessee pointed out that the revision order dated 18.03.2015 passed by the learned
I TA N o. 4 9 /A h d/ 2 01 7 AC I T Vs . V o d af o n e M o bil e S e rvi c e Lt d Ass e ss me n t Y ea r : 2 0 08 - 0 9 Page 2 of 3 Commissioner of Income-tax, as a result of which the impugned penalty has been imposed, stands quashed by a co-ordinate bench of this Tribunal vide order dated 21.12.2017. A copy of the said order was placed before us. Learned Counsel submits that it was a case in which though the Assessing Officer had raised tax withholding demand under section 201(1) and consequent interest levy under section 201(1A), the Assessing Officer himself had dropped the penalty proceedings under section 271C. This action of the Assessing Officer was followed by learned Commissioner’s revision order holding the said action to be erroneous and prejudicial to the interest of the Revenue and directing the Assessing Officer to impose penalty under section 271C. However, this revision order, as pointed out above, was quashed by a co-ordinate bench of this Tribunal. It is submitted that in view of this development the very foundation of impugned penalty ceases to be legally sustainable. In any event, according to learned Counsel, even the tax withholding demand under section 201(1) and consequent interest levy under section 201(1A) have also been deleted by another co-ordinate bench vide order dated 11.07.2017. A copy of the said order is also placed before us. It is pointed out that the co-ordinate bench has, inter alia, held that the assessee did not have any tax withholding obligations in respect of which the impugned penalty is levied. It is thus contended that on merits also the assessee has succeeded in quantum proceedings and as such the impugned penalty is legally unsustainable for this reason also. Learned counsel submits that in view of above facts the impugned penalty is vitiated in law on account of lack of jurisdiction as also on account of lack of merits. Learned Counsel thus submits that this appeal is covered, in favour of the assessee, by the judicial precedent cited above.
Learned Departmental Representative does not dispute the facts embedded in the submissions so made by the learned Counsel, but relies upon the stand of the Assessing Officer nevertheless.
In view of the above discussions, we find that the issue is squarely covered in favour of the assessee on the question of jurisdiction as also on merits. We have noted that the tax withholding demands in relation to which the impugned penalty was levied stand deleted and the revision order as a result of which the impugned penalty has been levied sands quashed. There is no dispute about this factual position and, given these facts, it is not really necessary to examine the reasoning adopted by the learned
I TA N o. 4 9 /A h d/ 2 01 7 AC I T Vs . V o d af o n e M o bil e S e rvi c e Lt d Ass e ss me n t Y ea r : 2 0 08 - 0 9 Page 3 of 3
CIT(A). That aspect of the matter is wholly academic in the present case. Suffice to say that the impugned penalty is devoid of any legally sustainable support and the learned CIT(A) was, therefore, correct in his conclusion. We see no reason to interfere in the matter.
In the result, the appeal is dismissed. Pronounced in the open court today on the 16th November, 2018
Sd/- Sd/-
Justice P P Bhatt Pramod Kumar (President) (Vice President) Ahmedabad, the 16th day of November, 2018 **bt
Copies to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order TRUE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad
Date of dictation: .......attached 3 pages dictation pad – 08.11.2018... 2. Date on which the typed draft is placed before the Dictating Member: .. 08.11.2018..... 3. Date on which the approved draft comes to the Sr. P.S./P.S.: …16.11.2018... 4. Date on which the fair order is placed before the Dictating Member for Pronouncement: .16.11.2018.. 5. Date on which the file goes to the Bench Clerk : . 16.11.2018……. 6. Date on which the file goes to the Head Clerk : ……………………………. 7. The date on which the file goes to the Assistant Registrar for signature on the order: …. 8. Date of Despatch of the Order: ………………......