TaxTMI 
TaxTMI 
2022 (11) TMI 1053
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....t, therefore, it should have being subjected to TDS. Accordingly, penalty order dated 27.02.2020 was passed and the same was challenged before Ld. CIT(A). The appeal was however dismissed by the Ld. CIT(A) on the basis that the penalty order u/s 271C of the Act has been passed by JCIT, Range-77, New Delhi and the notice of demand u/s 156 of the Act sent along with penalty order specified that appeal has to be filed before CIT(A)-41, New Delhi. Accordingly, the ld. CIT(A)-23, New Delhi dismissed the appeal being wrongly filed in that office. 3. The appellant has challenged the order of Ld. CIT(A) on following grounds :- 1. Under the facts and circumstances of the case, Ld. First Appellate Authority has grossly erred in passing orders u/s 250 of the Income Tax Act, 1961, without giving an opportunity of being heard to the assesse which is against the principal of natural justice, injudicious and bad at law. 2. Under the facts and circumstances of the case, Ld. First Appellate Authority has grossly erred in dismissing the appeal without giving an opportunity to the assessee to rectify the mistake in filing of appeal before correct jurisdictional which is against t....
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.... vs. ACIT, New Delhi ITA No. 5713/Del/2019 have been relied. Ld. DR however supported the order of ld. CIT(A). 6. Appreciating the matter on record, it can be observed that ld. CIT(A) has not disposed of the first appeal before it on merits but has dismissed it as it was wrongly filed before it and the appeal was required to be heard by CIT -41. Thus, there is no finding on merits which can be appreciated in this appeal. However, if Section 251(1)(b) of the Act defining powers of Commissioner is considered it provides that "in an appeal against an order imposing the penalty, CIT(A) may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty". However, here the appeal has been dismissed without exercising any of the aforesaid powers. In a case where appeal was wrongly filed appropriate course open to Ld. CIT(A) was to have not admit the appeal and to reject the appeal to be presented before appropriate appellate authority. However, once admitted then the disposal should have been in accordance with powers defined u/s 251(1)(b) of the Act only that not being done is a patently legality and the course open to this Tribunal is to either restore it to....
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....le of the case RPS Infrastructure Ltd. vs. ACIT have held that assessee was not required to deduct tax at source at the time of payment of EDC. 7.1 As for convenience the relevant findings at para no. 5 in M/s. Perfect Constech Pvt. Ltd (supra) is reproduced; "5. We have heard the rival submissions and have also perused the material on record. It is seen that in Para 4.3.2, subparagraph (iv) of the order passed u/s 271C of the Act, the LD.AO has himself noted that the demand draft of the EDC amounts are drawn in favour of the Chief Administrator, HUDA though routed through the Director General, Town and Country Planning, Sector-18, Chandigarh. He has also referred to the notes to accounts to the financial statements of HUDA wherein it has been stated that "other liabilities also include external development charges received through DGTCP, Department of Haryana for execution of various EDC works. The expenditure against which have been booked in Development Work in Progress, Enhancement compensation and Land cost." Undisputedly, the payment of EDC was issued in the name of Chief Administrator, HUDA. It is also not in dispute that HUDA has shown EDC as curr....
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....n going through the facts, we note that dispute is with regard to non-deduction of tax in respect of payment of EDC charges made by the assessee to HUDA. As per the LD.AO, HUDA is neither a local authority nor Government, thus, the payments made to it by the assessee on account of EDC charges were liable for TDS under section 194C of the Act. Since, assessee has failed to deduct the TDS; therefore, it is liable for penalty under section 271C of the Act. On the other hand, the case of the assessee is that obligation to pay EDC charges is arising out of the license granted by DTCP and these payments are to be made for obtaining the license and as per the direction of the DTCP, the same have been paid to HUDA. Further, these payments are not in the nature of payment or in pursuance of works contract. There is no privity of contract between the assessee and the HUDA. On the contrary, the agreement is between Assessee Company and the DTCP which admittedly is a Government Department as agreement has been signed by DTCP on behalf of Governor of Haryana. We are of the view that we need not go in all these issues. From the facts, it is evident that the payments have been made by the assesse....