TaxTMI 
TaxTMI 
2025 (10) TMI 897
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed u/s 143(3) r.w.s 144B of the Act is bad-in-law as the same was passed without issuing a show-cause notice cum draft assessment order as mandated u/s 144B(xvi)(b) of the Act and hence the impugned assessment order is liable to be quashed. 2. That on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi erred in not allowing the deduction claimed by the appellant u/s 438 of the Act to the extent of Rs. 1,66,44,340/- being the TDS payments pertaining to AY 2017-18 made by the appellant during the AY 2018-19 using the internet banking facility by opining that the TDS challans submitted by the appellant did not contain the stamp and signature of the Bank the same cannot accepted as genuine. 3. That on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi erred in not allowing the deduction claimed by the appellant u/s 438 of the Act to the extent of Rs. 1,40,23,520/- being the old outstanding Service tax payments made by the appellant during the AY 2018-19 using the internet banking facility b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....43B of the Act on or before the due date for filing the return of income u/sec. 139(1) of the Act and consequently, disallowed an amount of Rs. 4,87,72,674/- in the statement of total income and reported in ITR Form filed for the assessment year 2017-2018. Further, out of amount disallowed for the assessment year 2017-2018, the appellant has paid an amount of Rs. 4,10,61,665/- during the financial year 2017-2018 relevant to the assessment year 2018-2019 and claimed deduction in terms of sec.43B of the Act, in the ITR, in which, the said deduction has been made and accordingly claimed deduction under any other amount allowable as deduction in Schedule-BP. Out of the total amount, the appellant has filed relevant details including details of payment of service tax for Rs. 1,40,23,520/- and towards TDS of Rs. 1,66,44,340/- and the remaining amount of unpaid liabilities towards professional tax, PF and sales tax, the appellant could not file relevant evidences. However, the Assessing Officer without considering the relevant evidences filed by the assessee, has simply disallowed the amount and added back to the total income of the assessee. 4.1. The learned CIT(A) after considering ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the assessee is just making a story to cover the default caused for non-compliance to the statutory notices issued. 5.2. On further verification of the submission of the assessee it has been stated that the assessee had paid taxes on the amount of Rs. 4,10,61,665/- which pertained to financial year 2016-17, and the claim of the assessee of Rs. 3,06,67,860/- should be considered and allowed due to details furnished by the assessee, However, the details submitted by the assessee are presumed to be not genuine in nature as the documents submitted by the assessee are not fully complied and the genuineness of the documents cannot be accepted. Further the assessee has stated that the remaining payment of Rs. 1,03,93,805/- (i.e. Rs. 4,10,61,665/-minus Rs. 3,06,67,860/-) the supporting evidences cannot be given as the same have been misplaced by the old accountant who had not handed over the accounts and has left the organization is not acceptable. As it was the onus of the assessee to submit the requisite documentary evidences in support of its claim for claiming deduction, which the assessee failed to do so during the assessment as well as during the appellate proceedings. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 5. Aggrieved by the order of the learned CIT(A), the assessee is now, in appeal before the Tribunal. 6. CA, G Srinivasa Rao, Learned Counsel for the Assessee submitted that, the learned CIT(A) was erred in not allowing deduction claimed by the appellant u/sec. 43B of the Act to the extent of Rs. 1,66,44,340/- towards TDS payments pertaining to assessment year 2017-2018, even though, the assessee has filed relevant challans for payment of TDS, as per which, the challans clearly shows payment for the assessment year 2017-2018. Learned Counsel for the Assessee further submitted that, the learned CIT(A) was erred in not allowing deduction towards service tax payment in terms of sec.43B of the Act to the extent of Rs. 1,40,23,520/-, even though, the assessee has furnished relevant evidences including challans only on the ground that, the challans furnished by the assessee are not confirmed by the Bank with their signature and seal. Learned Counsel for the Assessee further referring to various challans submitted that, once payment has been made through Bank A/c, the challans will be automatically generated, for which, there is no requirement of any signature and seal of the Bank Off....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eard both the parties, perused the material on record and the orders of the authorities below. The Assessing Officer made addition of Rs. 4,10,61,665/- towards claim of any other amount allowable as deduction in Schedule-BP of ITR-6 filed for the assessment year 2018- 2019 which pertains to deduction towards disallowance of unpaid liabilities in terms of sec.43B of the Act in earlier assessment year and paid during the financial year relevant to assessment year under consideration. The Assessing Officer disallowed any other amount allowable as deduction in Schedule-BP of ITR on the ground that, the appellant could not file relevant evidences to prove the claim of unpaid liabilities for the year under consideration. The amount disallowed by the Assessing Officer includes disallowance of PF, sales tax and TDS u/sec. 43B of the Act for the assessment year 2017-2018 and claimed as deduction for the assessment year under consideration upon payment of said liabilities in the financial year 2017- 2018 relevant to assessment year 2018-2019. The Counsel for the Assessee furnished relevant ledger account of service tax payable in the books of accounts of the assessee along with challans of p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons u/sec. 28 to 44DA of the Income Tax Act, 1961" which covers disallowance of unpaid liabilities u/sec. 43B of the Act. During the financial year 2017-2018 relevant to assessment year 2018-2019, the appellant has paid TDS amount of Rs. 1,66,44,350/-. The appellant has furnished relevant challans for payment of TDS u/sec. 92B, 94I and 94J which pertains to payment of TDS towards salaries, rent and professional charges. Further, the appellant has also furnished a confirmation from Bank of Baroda indicating payment through Bank of Baroda to CBDT account towards TDS liabilities. From the details filed by the assessee, we find that, the appellant has furnished sufficient evidence in the form of ledger account of TDS appearing in the books of accounts of the assessee as on 01.04.2017 towards proof of payment of TDS pertains to assessment year 2017-2018 and confirmation from the Bank indicating payment to CBDT. Although, the learned CIT(A) has accepted that, the assessee has furnished relevant challans, but, confirmed the additions only on the ground that, confirmation from the Bank was not furnished. Since, the appellant has furnished confirmation from the Bank along with challans for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi has erred in not quashing the penalty order passed by the Assessing Officer u/s 270A of the Act dt.25.02.2022 as the AO failed to mention either in the assessment order or in the show cause notice issued for initiation of penalty proceedings, the specific limb in the sub-sections of section 270A under which the penalty proceedings are initiated in the appellant case and hence the penalty order passed by AO u/s 270A is liable to be quashed. 3. That on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi has erred in not appreciating the position of law that as the quantum appeal is non-est due to non- issuance of show-cause notice cum draft assessment order before finalizing the assessment, the penalty order passed based on the non-est quantum order is also bad-in-law and is liable to be quashed. Without prejudice to the above legal grounds raised, the appellant is hereby taking following grounds based on the merits of the case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submissions of the assessee and also taking note of reasons given by the Assessing Officer for levy of penalty, sustained the penalty levied by the Assessing Officer on the ground that, the assessee is unable to explain to the show cause notice issued by the Assessing Officer proposing levy of penalty for under-reporting of income as a consequence of misreporting of income and thus, there is no error in the reasons given by the Assessing Officer to levy penalty u/sec. 270A(8) of the Income Tax Act, 1961. The relevant findings of the learned CIT(A) are as under : "5.1. On going through the submission of the assessee it can be seen that the assessee during the assessment proceedings was provided a number of opportunities for submitting the details regarding the deduction claimed of Rs. 4,10,61,665/- as deduction in schedule BP of ITR. However, the assessee failed to comply to the said notice. In view of this fact, the addition of Rs. 4,10,61,665/-was made to the total income of the assessee during the assessment proceedings. Further, penalty proceedings u/s 270A of the Act were being initiated and show-cause notice u/s.274 r.w.s. 270A of the Act was issued upon the assessee ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the assessee had paid taxes on the amount of Rs. 4,10,61,665/- which pertained to financial year 2016-17, and the claim of the assessee of Rs. 3,06,67,860/- should be considered and allowed due to details furnished by the assessee. However, the details submitted by the assessee are presumed to be not genuine in nature as the documents submitted by the assessee are not fully complied and the genuineness of the documents cannot be accepted. Further the assessee has stated that the remaining payment of Rs. 1,03,93,805/- (i.e. Rs. 4,10,61,665/- minus Rs. 3,06,67,860/-) the supporting evidences cannot be given as the same have been misplaced by the old accountant who had not handed over the accounts and has left the organization is not acceptable. As it was the onus of the assessee to submit the requisite documentary evidences in support of its claim for claiming deduction, which the assessee failed to do so during the assessment as well as during the appellate proceedings. Therefore, it can be seen that the assessee-company is only making a story to cover up the inability to comply to the notices issued and failure to submit the requisite documentary evidences along with genuineness....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e notice issued by the Assessing Officer dated 27.04.2021 and further followed by the Order u/sec. 270A of the Income Tax Act, 1961 dated 25.02.2022 where the penalty has been levied for under-reporting of income as a consequence of misreporting of income. Therefore, the grounds of appeal of assessee should be rejected. The learned Sr. AR further submitted that, the Assessing Officer has rightly levied the penalty for under- reporting of income as a consequence of misreporting of income because, the appellant could not substantiate the claim of deduction towards any other amount allowable as deduction in Schedule-BP of ITR with relevant evidences. Therefore, he submitted that, the penalty levied by the Assessing Officer and confirmed by the learned CIT(A) should be sustained. 18. We have heard both the parties, perused the material on record and the orders of the authorities below. In so far as the arguments of the Counsel for the Assessee on the issue of show cause notice issued u/sec. 274 r.w.s.270A of the Income Tax Act, 1961, dated 27.04.2021, in our considered view, there is no merit in the arguments of the Counsel for the Assessee for the simple reason that, the Assessing ....