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Showing contexts for: 271C in Jaipur National University , Jaipur vs Joint Commissioner Of Income Tax, Tds, ... on 6 February, 2019Matching Fragments
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A), Jaipur dated 24.05.2018 for the Assessment Year 2012-13 wherein the assessee has taken following grounds of appeal:-
"1. Impugned order passed u/s 250/271C is bad in law and on facts being against the principal of natural justice and for many more other reasons.
2. Under the facts and circumstances of the case and in law, Ld. A.O. has erred in levying penalty under section 271C of the Income tax Act, 1961 amounting to Rs. 99,850/- on the appellant University for alleged non-deduction of tax at source, Further, Jaipur National University vs. JCIT, TDS CIT(A) erred by sustaining the same. The penalty sustained is unjustified, illegal or excessive.
4. Per contra, the ld. DR has submitted that on perusal of the order passed U/s 201(1) r.w.s. 201(1A), it is clear that a reference was made to the JCIT (TDS) for initiation of penalty proceeding U/s 271C of the Act and therefore, it is not correct that the DCIT (TDS) while passing the order U/s 201(1) r.w.s 201(1A) has initiated the penalty proceeding. It was further submitted that DCIT (TDS) is not an appropriate authority for initiation and levy of penalty U/s 271C of the Act and the appropriate authority is JCIT (TDS), therefore on this account as well, the contention so advanced by the ld. AR deserves to be dismissed. It was further submitted that the DCIT (TDS) made a reference to the JCIT (TDS) for initiation of penalty proceedings on 22.01.2013 and thereafter, notice was issued U/s 271C to the assessee on 11.02.2013 instead of 11.01.2013 as contended by the ld. AR. It was further submitted that there was typing mistake (in terms of date of notice) while issuing the notice and the same was corrected before issuance of Jaipur National University vs. JCIT, TDS the notice by the JCIT (TDS), Jaipur, therefore, initiation of penalty proceedings is by way of notice dated 11.02.2013 and given that the order has been passed on 29.08.2013, the same is within the limitation period prescribed U/s 275(1)(C) of the Act. It was accordingly submitted that the contention so advanced by the ld. AR should be dismissed.
5. In his rejoinder, the ld. AR submitted that the provisions contained U/s 271D & 271E are akin to provisions contained U/s 271C particularly authority who can impose penalty under all these sections are same. Therefore principle laid down in the case related to penalty imposed U/s 271D & 271E shall apply mutatis mutandis in the cases related to 271C. It is relevant to note that the Hon'ble Supreme Court had occasion to deal the point that when the period of limitation prescribed U/s 275 shall commence in the case of Commissioner of Income Tax vs. Hissaria Brothers 386 ITR 0719 (SC) (2016) wherein it was held that, " On perusing the judgment of the High Court, it is found that penalty imposed on the respondent herein was also set aside on the ground that the provisions of Section 271-D and 271-E of the Income Tax Act were invoked after six months of limitation and, therefore, such penalty could not have been imposed. Since the outcome of the judgment of the High Court can be sustained on this aspect alone, it is not even necessary to go into other aspects. Leaving the other questions of law open, the appeal is dismissed. There shall be no order as to costs"
Jaipur National University vs. JCIT, TDS
(c) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later."
9. On perusal of the order passed by the AO U/s 201(1) r.w.s. 201(1A) dated 31.10.2012, it is clear that a reference was being made to the JCIT (TDS) for initiation of penalty proceeding U/s 271C of the Act and the said reference was actually made vide AO's letter dated 22.01.2013 to JCIT(TDS). Thereafter, the JCIT(TDS) initiated the penalty proceedings u/s 271C by way of issuance of notice dated 11.02.2013 to the assessee and the penalty order u/s 271C was thereafter passed on 29.08.2013 which is well within the limitation period prescribed U/s 275(1)(C) of the Act. The ld AR's contention that the AO while passing the order U/s 201(1) r.w.s. 201(1A) has initiated the penalty proceedings is not found factually correct as there is no notice which has been issued by the AO to the assessee. Secondly, the contention of the ld AR that the initiation of the penalty proceedings should be reckoned from the date when the reference was made by the AO to JCIT(TDS) cannot again be accepted as the initiation of such proceedings have to be by way of issuance of a notice to the assessee and not by mere reference from the AO to JCIT(TDS). The decision of the Hon'ble Supreme Court in case of Hissaria Brothers is in context of applicability of clause (c) to sub-section (1) to section 275 which is not in dispute as far as present case is concerned. Further, the decision of Coordinate Bench in case of Subhash Pareta doesn't support the case of Jaipur National University vs. JCIT, TDS the assessee as in that case also, the AO didn't initiate the penalty proceedings and the first notice was issued by Add. CIT only initiating the penalty proceedings and thereafter, the order was passed within the prescribed limitation period. In light of above discussions, we are of the considered view that the impunged order is not barred by limitation and the contentions so advanced by the ld AR in this regard are not found acceptable.