Pudhari Publications Private Limited, Kolhapur V. Income Tax Officer, ,TDS, Kolhapur, Kolhapur

ITA 10/PUN/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3801 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2019-2020
• Appeal Filed On: 03-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR KESHARI
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 250; 251; 192; 246A

Judgement Text

।आयकर अपीलीय अिधकरण ”बी” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “B” :: PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA Nos.10 to 12/PUN/2024 िनधाᭅरण वषᭅ / Assessment Years: 2019-20, 2020-21 & 2021-22 Pudhari Publications Private Ltd., 2318, C Ward, Pudhari Bhavan, Bhausingji Road, Kolhapur – 416002. PAN: AADCP2453Q V s The ITO, TDS, Kolhapur – 416003. Appellant/ Assessee Respondent /Revenue Assessee by Shri S.N.Puranik – AR Revenue by Shri Ajay Kumar Keshari – DR Date of hearing 19/02/2024 Date of pronouncement 20/02/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: These three appeals filed by the assessee are against the separate orders of Ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 all dated 10.11.2023. Since issue involved is same, all these appeals were heard together and decided by this consolidated order. We treat appeal in ITA No.10/PUN/2024 for A.Y.2019-20, as a lead case. The assessee for A.Y.2019-20 has raised the following grounds of appeal : ITA Nos.10 to 12/PUN/2024 Pudhari Publications Private Ltd., [A] 2 “1. Whether on the facts and in the circumstances of case and in law, CIT(A) was correct in passing Ex-parte Order without considering the Merits in the matter and precedence of CIT(A) decision in favour for earlier year and also adjournment request filed for submission ? 2. Whether on the facts and in the circumstances of case and in law, CIT(A) was correct in confirming Order passed under section 154 by AO at CPC, in respect of Interest under section 201(1)/201(1A) amounting to Rs. 6,78,210 for delayed payment of TDS on Salary without appreciating the taw that responsibility’ to deduct TDS under section 192 arises only at the time of payment of salary and there was no such delay in payment of TDS. 3. Whether on the facts and in the circumstances of case and in law, CIT(A) was correct in confirming Order passed under section 154 by AO at CPC, in respect of Interest under section 220(2) amounting to Rs. 1,28,858 for delayed payment of Interest on TDS on without appreciating the fact that Interest on TDS on Salary itself is not tenable in law. Further it is requested that: - 1. The assessee craves leave to amend, alter or delete any of the above grounds of appeal. 2. It is prayed that the above claims and allowances be allowed.” Submission of ld.Authorised Representative(ld.AR) : 2. The ld.Authorised Representative(ld.AR) for the Assessee submitted that assessee’s appeal was dismissed by the ld.CIT(A) without discussing each and every ground and merits of the case. ITA Nos.10 to 12/PUN/2024 Pudhari Publications Private Ltd., [A] 3 Hence, ld.AR requested for one more opportunity of being heard to the assessee. Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC]. Findings & Analysis : 4. We have heard both the parties and perused the records. On perusal of the order of the ld.CIT(A)[NFAC] it is observed that ld.CIT(A) has dismissed the appeal without discussing merits, as assessee failed to file submission in response to notices issued by ld.CIT(A).The ld.CIT(A) has decided this case as under : “3. Although the appellant has requested adjournment till 06.11.2023, however no response was received till 10.11.2023. As the appellant has not provided any explanation or evidence in support of the grounds of appeal, so I am constrained to uphold the decision made by the assessing officer for want of explanation and documentary evidences as well as on merit too. In the circumstances, the grounds of appeal of the appellant are dismissed.” 4.1 In this case, ld.CIT(A) has dismissed the appeal of the assessee for non-prosecution. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits. ITA Nos.10 to 12/PUN/2024 Pudhari Publications Private Ltd., [A] 4 4.2 The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF)(Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the ITA Nos.10 to 12/PUN/2024 Pudhari Publications Private Ltd., [A] 5 appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.” Unquote. 5. Thus, Hon’ble Bombay High Court has categorically held that CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non-prosecution. 6. In view of this, the order of the ld.CIT(A)[NFAC] is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the assessee. 7. Accordingly, appeal of the assessee in ITA No.10/PUN/2024 is allowed for statistical purpose. ITA Nos.11 & 12/PUN/2024 : 8. In ITA Nos.11 & 12/PUN/2024, it is an admitted fact that ld.CIT(A) has dismissed the appeal without discussing merits. Since we have already discussed the issue at length and the facts of ITA No.10/PUN/2024 are similar to the facts of ITA Nos.11/PUN/2024 & ITA No.12/PUN/2024, therefore, our decision in ITA No.10/PUN/2024 shall apply mutatis mutandis to these two appeals also, accordingly, grounds of appeals raised by ITA Nos.10 to 12/PUN/2024 Pudhari Publications Private Ltd., [A] 6 the assessee in both appeals of ITA Nos.11/PUN/2024 & ITA No.12/PUN/2024 are allowed for statistical purpose. 9. In the result, both appeals of the assessee in ITA Nos.11/PUN/2024 & ITA No.12/PUN/2024 are allowed for statistical purpose. 10. To sum up, three appeals of the assessee in ITA No.10/PUN/2024, ITA No.11/PUN/2024 and ITA No.12/PUN/2024 are allowed for statistical purpose. Order pronounced in the open Court on 20 th February, 2024. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 20 th Feb, 2024/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “बी” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.