(PER :
HONOURABLE MS.JUSTICE SONIA GOKANI) Being aggrieved by the order of the Income Tax Appellate Tribunal ( ITAT for short) dated 16.03.2012, revenue has preferred this tax appeal under Section 260A of the Income-tax Act, 1961 (hereinafter to be referred to as the Act ). Substantial question of law proposed for our consideration is as follows:
Whether the Appellate Tribunal is right in law and on facts in confirming the order of the CIT(A) deleting the penalty of Rs. 1,97,55,306/- levied by Assessing Officer u/s. 271(1)(c) of the Act?
The respondent, who is engaged in the business of construction for the year under consideration 2006-07, had disclosed his total income at Rs. 14 lacs (rounded off). The case was selected for scrutiny. The respondent also filed return after the fresh notice was issued. Certain additions were made by the Assessing Officer, who imposed the penalty while disallowing various expenses for not having deducted/deposited TDS. When challenged before the CIT(Appeals), it partly allowed the said appeal upholding disallowance of expense and not confirming penalty. When further challenged before the Tribunal, it had allowed such order of the CIT(Appeals) whereby it disallowed expenses for want of timely deduction/deposit of TDS. However, on the ground of disallowance made by the Assessing Officer with respect to the TDS, they did not uphold imposition and penalty u/s. 271(1)(c) of the Act. This has aggrieved the revenue, and therefore, the present appeal.
We heard learned counsel, Ms. Paurami Sheth for the appellant and senior counsel, Mr. Soparkar for the respondent. Learned counsel, Ms. Sheth has argued that the Tribunal had failed to see that the assessee had failed to deduct the TDS as per law which was also deposited late and on such disallowance as has been confirmed by both CIT (Appeals) and ITAT and therefore, the imposition of penalty by Assessing Officer was just and proper. Per contra, learned senior counsel submitted that none of the elements of Section 271(1)(c) get attracted in case of the respondent assessee. On due consideration of the submissions of both sides and on examining the orders of all the authorities, we find no reason to interfere in this appeal in as much as both the authorities namely CIT(A) and ITAT have rightly deleted the penalty observing that the disallowance was due to non-payment of TDS, which was at the most a technical default. There being nothing to indicate any concealment of the income or furnishing of inaccurate particulars of income by the assessee, the Assessing Officer was rightly not justified in levying the penalty.
This being a correct approach adopted by both the authorities concurrently, this tax appeal poses no question of law and the same requires no interference and is consequently to be dismissed.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) Jyoti Page 3 of 3