Dinesh Kumar Sharma JUDGMENT
Manmohan, J.
1. Present appeal has been filed challenging the order dated 16th November, 2020 passed by Delhi Bench of the ITAT (hereinafter 'Tribunal') in ITA No. 947/Del/2012. The relevant portion of the impugned order passed by the Tribunal is reproduced hereinbelow:-
"14. On the aspect of interest under Section 234B, Ld. AR placed reliance on the decision of the Hon'ble Delhi High Court in the case of DIT Vs. GE Packages Power Inc. MANU/DE/0188/2015 : (2015) 373 ITR 0065 (Delhi). In this case, the Hon'ble High Court of Delhi preferred and followed its decision in the case of Director of Income Tax vs. Jacabs Civil Incorporated MANU/DE/2697/2010 : (2011) 330 ITR 0578 wherein it was held that Sec. 195 put an obligation on the payer i.e. any person responsible for paying any amount to a nonresident to deduct tax at source at the rates in force from such payments, thus, entire tax is to be deducted at source, which is payable on such payments made by the payer to the non-resident, that if the said payer has defaulted in deducting tax at source, the Department can take action against the payer under the provisions of Section 201 of the Act and compute the amount accordingly; that in such a case, the non-resident is liable to pay tax but there is no question of payment of advance tax; and that, therefore, assessee is not liable to pay interest under Section 234B on account of default of the payer in deducting tax at source from the payments made to the assessee. It is pertinent to note that the decision in Jacabs Civil Incorporated (supra) relates to the AY 2001-02.
15. Be that as it may, inasmuch as we held in the preceding paragraphs that there is no royalty income involved in this matter, and for want of Permanent Establishment, the business income of the assessee is not taxable in India, we, therefore, in these circumstances and also while respectfully following the decision of the Hon'ble Jurisdictional High Court, hold this issue in favour of the assessee in all the assessment years."
2. Learned counsel for the appellant states that the charging of interest under Section 234B of the Income Tax Act, 1961 is consequential and mandatory. He submits that since the Assessing Officer in the original assessment order dated 29th December, 2008 had given a specific direction to charge interest, non-levy of interest under Section 234B of the Act while computing tax demand was a mistake apparent on the record and was therefore rectifiable under the provisions of Section 154 of the Income Tax Act.
3. Upon perusal of the impugned order, this Court finds that in the impugned order, the Tribunal has relied upon the judgment passed by this Court in Director of Income Tax vs. Jacabs Civil Incorporated (2011) 330 ITR 0578, which has been confirmed by the Supreme Court on 17th September, 2021 in Director of Income Tax, New Delhi vs. M/s. Mitsubishi Corporation, Civil Appeal No. 1262/2016.
4. This Court is also in agreement with the opinion of the Tribunal that the penalty can only be levied in such cases where conceal........