2015 (8) TMI 989

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....x at source u/Sec. 194C and not u/Sec. 194J of the Income Tax Act, 1961 when the said issue was not before them and the assessee has only assailed the penalty ?" 2. With the consent of the parties, we have heard the appeal on merits. 3. Instant Income Tax Appeal u/Sec. 260A of the Income Tax Act, by the appellant-Revenue is directed against order dt.30/01/2009 passed by the ITAT and relate to the assessment year 2005-06. 4. Brief facts, which are relevant for disposal of the present appeal, are that a survey operation was conducted on the business premises of the respondent-assessee (a partnership firm) on 16/02/2005. The assessee deals in the transmission of channels through cable network and during the course of survey, it was fo....

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....ed the issue at all and in so far as the ITAT is concerned, he contended that it wrongly relied upon the finding recorded by the CIT(A) and there is no reasoning by the ITAT of its own and thus when the ITAT, which is a final fact finding authority, ought to have gone into the issue in a detailed manner and thus, the order is perverse and requires consideration. 7. On the contrary, ld. counsel for the respondentassessee contended that both the appellate authorities had elaborately discussed the issue and have gone into the facts as also the law and rightly come to the conclusion that the assessee was not aware of the provisions of the tax deduction at source and immediately on being made aware, the tax with interest was deposited and the....

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....e of survey on 16/02/2005, tax was deducted and deposited in terms of Sec. 194C. It would be appropriate to quote the observations made by this Court in its order dated.16/09/2014 which reads ad-infra:- "After the matter being heard, counsel for respondent-assessee Mr. Mahendra Gargieya submits that as per his instructions before the date of survey dated.16/02/2005, the TDS was deducted & deposited in terms of Sec. 194C. However after the survey was conducted, the assessee was called upon to say that in place of Sec. 194C the TDS was to be deposited u/S 194J and the only dispute was in reference to difference of the amount of TDS and that was deposited immediately after it was brought to their notice without fail and under these circumst....

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.... S.No. Date Amount (in Rs.) Section 1 25.03.2005 4,00,000/- 194C 2 29.03.2005 2,41,808/- 194C 3 02/05/05 97,539/- 194J 4 27.05.2005 2,35,678/- 194J 5 02/07/05 2,94,786/- 194J 6 06/07/05 2,040/- 194J 7 19.07.2005 1,71,609/- 194J 8 22.07.2005 2,197/- 194J   TOTAL 14,45,657/-     That when my counsel asked earlier, out of my faint memory I instructed him that such amount of TDS was deposited u/s 194C of the Act even prior to 16.02.2005." 11. Thus, the contention of the counsel at one point of time on the observations of the ITAT was that even prior to the date of survey, they were deducting tax at sourc....