TaxTMI 
TaxTMI 
2019 (1) TMI 951
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....er section 271(1 )(c) of the Act of Rs. 3,08,52,975/- in respect of following controversial/disputed disallowance made in the assessment order: i) Payment Gateway Charges disallowed u/s 40(a)(ia) alleging TDS should have been deducted u/s 194H of the Act wherein penalty of Rs. 2,85,12,768 has been upheld. ii) Difference in rate of depreciation on Computer Peripherals wherein penalty of Rs. 55,491 has been upheld. iii) Difference in amount of depreciation on 'Website Development Cost' arising due to past Appellate order, wherein penalty of Rs. 22,84,716 has been upheld. 2. That on the facts and the circumstances of the case and in law, Ld. CIT(A) has failed to appreciate that the provisions of section 271(....
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.... been disregarded without giving cogent reasons as to how the requirements of Section 271(1 )(c) are met in this case and hence the impugned order is perverse, vitiated in law and deserves to be quashed on this ground alone. Penalty in respect of Payment Gateway Charges disallowed under section 40(a)(ia) 6. The Ld. CIT(A) on the facts and circumstances of the case and in law has erred in upholding penalty of Rs. 2,85,12,768 under Section 271(l)(c) of the Act on disallowance of the payment gateway charges retained/paid to Indian banks, without appreciating the fact that: i) The issue whether TDS is required to be deducted on payment gateway charges retained/paid to banks is controversial, debatable and litigative a....
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....of depreciation arising out of past litigation. 9. That on the facts and the circumstances of the case and in law, Ld.CIT(A) has failed to appreciate that this issue has been under litigation and the Hon'ble Income Tax Appellate Tribunal in Appellant's own case for AY 2004-05 vide order dated March 9, 2012 has allowed depreciation @ 25%, whereas return of income for AY 2009-10 was filed on September 26,2009 The above grounds of appeal are without prejudice to and independent of one another. 2. The brief facts of the case are that the assessment of assessee for the year under consideration was completed u/s. 143(3)/144C(3) of the IT Act on 01.05.2013 at an income of Rs. 55,13,70,655/- against the loss of Rs. 41,69,31,088....
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....ntion of the assessee has been that in the quantum appeal, this issue has been decided by ITAT in assessee's own case by the Tribunal for the year under consideration vide order dated 26.09.2017 (ITA No. 4721/Del/2014). The relevant observations of ITAT read as under : On consideration of the rival submissions in the light of the earlier order of the Tribunal dated 30th January, 2017. (supra) we find that this issue is already decided in favour of the assessee by the Tribunal following the decision of the Hon 'ble Delhi High Court in the case of CIT Vs. JDS Apparels (P.) Ltd. (2015) 370 ITR 454 (Del.) in which it was held "that commission to bank on payments received from customers who had made purchase through credit cards is ....
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....wherein it has been laid down that where the additions made in the assessment order on the basis of which penalty for concealment was levied has been deleted, there remains no basis at all for levying concealment penalty and therefore, in such a case no such penalty can survive. Accordingly, the penalty based on this addition, sustained by ld. CIT(A) deserves to be cancelled. 5. As far as the penalty based on addition made on account of excess depreciation claimed on website development cost is concerned, the assessee claimed depreciation of Rs. 3,02,03,098/- @ 60% on the website development cost. The Assessing Officer allowed depreciation @ 25% after following order of CIT(A) for earlier A.Y. 2007-08 and of Tribunal for A.Y. 2004-05 ....
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.... account of difference in rate of depreciation on computer peripherals, the Assessing Officer has observed that the assessee made a wrong claim of depreciation @ 60% on printers, UPS, computer stationery, routers and scanners by clubbing them with the computers. As per Assessing Officer these items fall in the category of office equipments for which depreciation is available @ 15%. It was also observed that assessee had clubbed the license fees paid for the software with the computer and the software were not purchased with their source codes and such software were eligible for depreciation @ 25%. Thus, the Assessing Officer worked out excess depreciation of Rs. 73,48,472/- and added the same to the income of assessee. Based on this additio....