penalty under section 271(1)(c)

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fak_ca (Querist)
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10 June 2009 my case relates to a company assessee whose assesseement for the a/y 2006-07 was carried out,the a.o disallowed an expenditure of freight charges on which the assessee has not deducted tds,the same was contested before the a.o that this amount was incurred by our contractor whose cold storeage the company has taken on rent for processing of meat,the contractor incurred the expenses on our behalf and through a debit note claimed the reimbursement, during the course of assessment the contractor has confirmed in writing to the a.o that he has deducted and deposited tds on the amount claimed by him in his debit note, this undertaking was also submitted to the a.o but the same was refused by him,he disallowed the expenses stating the the company should also have deducted and deposited tax on the same amount,i.e deduct tax twice on the same amount

the assessee deposited the demand of 143(3) NOW the has initiated penalty proceeding under section 271(1)(c),

sir i want to file appeal against the order will it be feasible kindly advice

Radheyshyam Falod

Radheyshyam Falod (Expert)
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10 June 2009 The due date for completion of assessment u/s 143 was 31st December, 2008 and appeal is to be filed within 30 days from the date of receipt of order. So you are already late for filing appeal against the assessment order if you wish to.

If you wish to file an appeal against initiation of penalty proceedings then you cannot file as it is not an appealable u/s 246. Only order can be appealed against.

fak_ca

fak_ca (Querist)
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10 June 2009 sir,

penalty proceeding was initiated seperately and the order under section 271(1)(c)was passed on 14th may,2009

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Radheyshyam Falod

Radheyshyam Falod (Expert)
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10 June 2009 Yes then you will have to file an appeal. You could also have filed an appeal for your assessment order as what i view this is that u have not claimed an expenditure and correspondngly no TDS is liable to be deducted and no disallowance is called for.

fak_ca

fak_ca (Querist)
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10 June 2009 sir,

is there any rulig of court, in which this case is decided in my favour,as till now i have made a desperate attempt to find the same but it was fruitless kindly help me with the same thanks

taxindiaconnect

taxindiaconnect (Expert)
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10 June 2009 The time limit for filing the appeal before CITA(A) is 30 days from the end the date of on which the order of the AO is received. So now in your case the appeal is time barred. However you can file an appeal before CIT(A) along with an application for condonation of delay in filing of an appeal. The reason shown for condonation of delay should be reasonable and acceptable to CIT(A). You have a good case on merit and Even if CIT(A) does entertain the case you may go to ITAT against his order where, I see good chances of success in you case.
You can file and appeal for separate proceedings u/s 271(1) ( c ). There are strong chances that you can get a success in the appeal before CIT(A).