Deputy DirectorAgriculture,Lodhipur, Shahjahanpur V. Income Tax Officer (TDS), Bareilly

ITA 103/LKW/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1143 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 09-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C. K. SINGH
• Keywords: Reasonable cause; TDS; Set aside
• Section: 234E; 20

Judgement Text

I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NOS.89 TO 92/LKW/2018 ASSESSMENT YEARS:2013-14 & ITA NOS.93 TO 98/LKW/2018 ASSESSMENT YEARS:2014-15 & ITA NOS.99 TO 102/LKW/2018 ASSESSMENT YEARS:2015-16 & ITA NOS.103 TO 107/LKW/2018 ASSESSMENT YEARS:2016-17 DY. DIRECTOR AGRICULTURE, LODHIPUR, NEAR GANNA KISAN SANSTHAN, SHAHJAHANPUR. PAN:LKNDO 6271 G VS. INCOME TAX OFFICER(TDS), BAREILLY. (APPELLANT) (RESPONDENT) O R D E R PER BENCH: THIS IS A GROUP OF 19 APPEALS FILED BY THE ASSESSE E AGAINST THE SEPARATE ORDERS OF LEARNED CIT(A) ALL DATED 29/11/2 017. COMMON ISSUES ARE INVOLVED IN THESE APPEALS WHICH WERE HEARD TOGE THER AND THEREFORE, FOR THE SAKE OF CONVENIENCE A COMMON AND CONSOLIDATED O RDER IS BEING PASSED. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT IN T HESE APPEALS THE ISSUE IS REGARDING LATE FEE CHARGED FROM THE ASSESSEE U/S 234E OF THE ACT AND APPELLANT BY SHRI B. P. YADAV, COST ACCOUNTANT RESPONDENT BY SHRI C. K. SINGH, D.R. DATE OF HEARING 29 / 11 /201 8 DATE OF PRONOUNCEMENT 30 / 11 /201 8 I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 2 LEARNED CIT(A) HAD DISMISSED THESE APPEALS WITHOUT EXPRESSING ANY OPINION ON THE MERITS OF THE CASES AS THERE WAS A DELAY OF MORE THAN ONE YEAR IN ALL THESE APPEALS. IT WAS SUBMITTED THAT THE DELAY HAD OCCURRED IN FILING OF THE APPEALS AS THE ASSESSEE HAD MOVED AN APPLICATION U/ S 154 OF THE ACT AND IT WAS AWAITING THE OUTCOME OF THE APPLICATION U/S 154 . IT WAS SUBMITTED THAT THE ORDER U/S 154 WAS PASSED ON 13/06/2017 AND 14/0 6/2017 AND THE APPEALS BEFORE LEARNED CIT(A) WERE FILED ON 03/07/2 017. IN THIS RESPECT LEARNED A. R. FILED A CHART SHOWING THEREIN THE APP EAL NUMBER, DATE OF FILING APPLICATION U/S 154, DATE OF PASSING ORDER U/S 154 AND DATE OF FILING OF APPEALS BEFORE LEARNED CIT(A). LEARNED A. R. THERE FORE, PRAYED THAT IN VIEW OF SUBSTANTIAL JUSTICE THE LEARNED CIT(A) MAY BE DI RECTED TO DISPOSE OF THESE APPEALS ON MERITS. IT WAS SUBMITTED THAT DELAY IN FILING THE APPEALS WAS NOT CAUSED INTENTIONALLY OR NEGLIGENTLY AND VARIOUS COU RTS HAVE TAKEN A VIEW THAT IN THE MATTER OF CONDONATION OF DELAY, A LIBERAL AN D PRAGMATIC VIEW SHOULD BE TAKEN. RELIANCE IN THIS RESPECT WAS PLACED ON A N ORDER OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF BHARAT AUTO CEN TRE VS. CIT [2006] 282 ITR 366 (ALL). 2. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE HAD FILED APPEALS BEFORE LEARNED CIT(A) AFTER OUTCOME OF ORDER U/S 154 OF THE ACT AN D THE APPEALS WERE FILED WITHIN A PERIOD OF 20 DAYS FROM THE OUTCOME OF THE ORDER U/S 154. THERE IS A REASONABLE CAUSE OF DELAY IN FILING THE APPEALS B EFORE LEARNED CIT(A) AND THEREFORE, LEARNED CIT(A) SHOULD HAVE DECIDED THE I SSUE ON MERITS. HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF BHARAT AUTO CEN TRE (SUPRA), ON THE ISSUE OF CONDONATION OF DELAY, HAS HELD AS UNDER: I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 3 THE LAW OF LIMITATION IS ENSHRINED IN THE MAXIM IN TEREST REIPUBLICAE UT SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO D ESTROY THE RIGHTS OF THE PARTIES, RATHER THE IDEA IS THAT EVERY LEGAL RE MEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. 7. IN THE CASE OF COLLECTOR, LAND ACQUISITION V. MS T. KATIJI REPORTED IN [1987] 167 ITR 471 , HONBLE SUPREME COURT HELD AS FOLLOWS (PAGE 472) : THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PART IES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION S UFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY EL ASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICETHAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COUR TS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT : 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHES T THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HE ARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU RS DELAY, EVERY SECONDS DELAY ? THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMONSENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 4 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTE D NOT ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GRO UNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 8. IN N. BALAKRISHNAN V. M. KRISHNAMURTHY REPORTED IN [1998] 7 SCC 123 THE APEX COURT EXPLAINED THE SCOPE OF LIMITATIO N AND CONDONATION OF DELAY, OBSERVING AS UNDER (HEADNOTE) : THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. THE TIME-LIMIT FIXED FOR APPROACHING THE COURT IN DIFFE RENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIM E A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. RULES OF L IMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF PARTIES. THE Y ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTI CS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LE GAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL I NJURY. THE LAW OF LIMITATION FIXES A LIFESPAN FOR SUCH LEGAL R EMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. 9. IN SHANKARRAO V. CHANDRASENKUNWAR REPORTED IN [1 987] SUPP SCC 338, THE SUPREME COURT TOOK THE VIEW THAT THE COURT SHOULD NOT ADOPT AN INJUSTICE-ORIENTED APPROACH IN REJECTING T HE APPLICATION FOR CONDONATION OF DELAY. 10. IN VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V. SHANTARAM BABURAO PATIL REPORTED IN [2002] 253 ITR 798 , THE APEX COURT MADE A DISTINCTION IN DELAY AND INORDINATE DELAY OBSERVING AS UNDER (PAGE 799) : IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIM ITATION ACT, THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINC TION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE A ND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FO RMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH. . . . 11. IN NEW INDIA INSURANCE CO. LTD. V. SMT. SHANTI MI SRA [1977] 47 COMP CAS 453 ; AIR 1976 SC 237, THE HONBLE SUPREME COURT HELD THAT DISCRETION GIVEN BY SECTION 5 SHOULD NOT BE DE FINED OR CRYSTALLIZED SO AS TO CONVERT A DISCRETIONARY MATTE R INTO A RIGID RULE OF LAW. THE EXPRESSION SUFFICIENT CAUSE SHOULD RECEI VE A LIBERAL CONSTRUCTION. 12. IN BRIJ INDER SINGH V. KANSHI RAM, AIR 1917 PC 156, IT WAS OBSERVED THAT THE TRUE GUIDE FOR A COURT TO EXERCIS E THE DISCRETION UNDER SECTION 5 IS WHETHER THE APPELLANT ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 5 13. IN SHAKUNTALA DEVI JAIN V. KUNTAL KUMARI, AIR 196 9 SC 575, THE HONBLE SUPREME COURT HELD THAT UNLESS WANT OF BONA FIDES OF SUCH INACTION OR NEGLIGENCE AS WOULD DEPRIVE A PARTY OF THE PROTECTION OF SECTION 5 IS PROVED, THE APPLICATION MUST NOT BE TH ROWN OUT OR ANY DELAY CANNOT BE REFUSED TO BE CONDONED. 14. IN O. P. KATHPALIA V. LAKHMIR SINGH REPORTED IN AIR 1984 SC 1744, THE THE HONBLE SUPREME COURT HELD THAT IF TH E REFUSAL TO CONDONE THE DELAY RESULTS IN GRAVE MISCARRIAGE OF J USTICE, IT WOULD BE A GROUND TO CONDONE THE DELAY. 15. IN STATE OF HARYANA V. CHANDRA MANI REPORTED IN AIR 1996 SC 1623, HONBLE SUPREME COURT CONSIDERED THE LARGE NU MBER OF ITS EARLIER JUDGMENTS INCLUDING BINOD BIHARI SINGH V. U NION OF INDIA REPORTED IN [1993] 1 SCC 572, SHAKAMBARI AND CO. V. UNION OF INDIA REPORTED IN [1993] SUPPL 1 SCC 487, WARLU V. GANGOT RIBAI REPORTED IN [1995] SUPPL 1 SCC 37, RAMLAL V. REWA COALFIELDS LT D., REPORTED IN AIR 1962 SC 361, CONCORD OF INDIA INSURANCE CO. LTD. V. SMT. NIRMALA DEVI [1979] 118 ITR 507 ; AIR 1979 SC 1666 ; [1979] 49 COMP CAS 463, MATA DIN V. A. NARAYANAN, AIR 1970 SC 1953, AND HELD THAT EXPRESSION EACH DAYS DELAY MUST BE EXPL AINED, DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE AND IT MUST BE APPLIED IN A RATIONAL COMMONSENSE PRAGMATIC MANNER. 16. IN THE RESULT, THE APPEAL IS ALLOWED. THE ORDER OF THE TRIBUNAL DATED AUGUST 14, 2003, AND THE ORDER OF THE COMMISS IONER OF INCOME-TAX (APPEALS) DATED JANUARY 23, 2002, ARE SET ASIDE. THE MATTER IS REMANDED BACK TO THE COMMISSIONER OF INCOM E-TAX (APPEALS) TO DECIDE THE APPEAL ON THE MERITS AFTER GIVING OPPORTUNITY OF HEARING IN ACCORDANCE WITH THE LAW. 4.1 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE JUDICIAL PRECEDENTS, WE DIRECT THE LEARNED CIT(A) T O CONDONE THE DELAY IN FILING THE APPEALS AND HEAR THE ASSESSEE ON MERITS. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE S TAND ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 30/11/2018) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:30/11/2018 *SINGH I.T.A. NOS.89 TO 107/LKW/2018 ASSTT YRS:2013-14, 14-15, 15-16 & 16-17 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR