Annapurna Educational and Charitable Society, Visakhapatnam V. Assessing Officer, TDS, Ward-1, Visakhapatanam

ITA 11/VIZ/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4145 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 23-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234E; 200A; 113

Judgement Text

आयकर अपीऱीयअधिकरण, विशाखापटणम पीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्ि ू रु आर एऱ रेड्डी, न्याययक सदस्य एिं श्री एस बाऱाक ृ ष्णन, ऱेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अऩीऱ सं./ I.T.A. Nos. 09, 10, 11, 12, 13, 14, 15, 16, 17 & 18/Viz/2022 (ननधधारण वषा / Assessment Years: 2013-14 & 2014-15) Annapurna Educational and Charitable Society, Visakhapatnam. PAN: AAATA 3096 N Vs. The Income Tax Officer (TDS), Ward-1, Visakhapatnam. (अऩीऱधथी/ Appellant) (प्रत्यथी/ Respondent) अऩीऱधथी की ओर से/ Assessee by : Sri GVN Hari, Advocate प्रत्यधथी की ओर से / Revenue by : Sri SPG Mudaliar, Sr. AR स ु नवधई की तधरीख / Date of Hearing : 15/06/2022 घोषणध की तधरीख/Date of Pronouncement : 23/06/2022 O R D E R PER BENCH : All the captioned appeals ( I.T.A. Nos. 09, 10, 11, 12, 13, 14, 15, 16, 17 & 18/Viz/2022 ) are filed by the assessee against the orders of the Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi in various orders dated 31/7/2021, 1/8/2021 and 4/8/2021 for the AYs 2013-14 and 2014-15. Since the issues involved in all 2 the appeals are identical, for the sake of convenience, these appeals are clubbed, heard together and disposed off in this consolidated order. 2. In these cases, there is a delay in filing the instant appeals before the Tribunal. The details are as under: Sl No ITA No. No. of days delay 1. 9/Viz/2022 117 2. 10/Viz/2022 117 3 11/Viz/2022 117 4 12/Viz/2022 113 5 13/Viz/2022 113 6 14/Viz/2022 113 7 15/Viz/2022 113 8 16/Viz/2022 113 9 17/Viz/2022 113 10 18/Viz/2022 116 3. The assessee has filed condonation petitions in all the cases explaining the reasons for belated filing of the appeals. However, in view of the decision of the Hon’ble Supreme Court in SMW(A) No.3 of 2020, the period of limitation for filing the appeals under general laws and all special laws falling between 15/3/2020 and 28/02/2022 shall be excluded for calculating the delay. Considering the same, we hereby condone the delay in filing the present appeals before the Tribunal and proceed to adjudicate the cases on merits. 3 4. In all the instant appeals, since the assessee has raised five identical grounds, the grounds raised by the assessee for the AY 2013-14 in ITA No. 09/Viz/2022 are extracted herein below for the sake of reference: “1. The order of the Ld. CIT(A) is contrary to the f acts and also the law applicable to the f acts of the case. 2. The Ld. CIT(A) ought to have condoned the delay. 3. Without prejudice to the above, the Ld. CIT(A) ought to have given suff icient opportunity to the appellant to explain the reasons f or the delay in f iling the appeal. 4. The Ld. CIT(A) ought to have decided the appeal on merits of the case and ought to have deleted the late f iling f ee of Rs. 13,584/- levied U/s. 234E of the Act. 5. Any other ground that may be urged at the time of hearing.” 5. Briefly stated the facts pertaining to the AY 2013-14 (ITA No. 09/Viz/2022) are that the assessee is a society running educational institutions in Visakhapatnam. The assessee filed TDS Quarterly statement in Form-24Q for the Q-2 of FY 2012-13 belatedly beyond the due date specified under the Act. Considering the delay in filing the TDS quarterly statement, the Ld. AO vide intimation U/s. 200A dated 8/1/2017 levied late filing fee of 13,584/- U/s. 234E of the Income Tax Act, 1961 on 4 account of delayed filing of the TDS returns for the AYs under consideration. Aggrieved by the order of the Ld. AO, the assessee filed appeal before the Ld. CIT(A) belatedly beyond the prescribed time limit specified under the Act. Before the Ld. CIT(A), the assessee has filed petitions explaining the belated filing of the TDS returns with a prayer for condonation of delay in filing the appeal. Before the Ld. CIT(A) the assessee has also submitted that the delay in filing the appeals before the First Appellate Authority may be condoned to advance substantial justice on the ground that the issues involved on merits regarding levy of late filing fee U/s. 234E of the Act is now covered in favour of the assessee by various decisions as per which there is no provisions under the Act to levy late filing fee before insertion of section 200A by Finance Act, 2015 w.e.f 1/6/2015. The Ld. CIT (A) dismissed the appeal of the assessee by holding that the explanation given by the assessee for belated filing of the appeal before the First Appellate Authority does not constitute “sufficient cause”. To support his view, the Ld. CIT (A) relied on various decisions which find a place in the order of the Ld. CIT(A). Aggrieved by the orders of the Ld. CIT (A), the assessee is in appeal before the Tribunal raising the grounds mentioned herein above. 5 6. At the outset, the Ld. Counsel for the assessee, with regard to levy of late filing fee U/s. 234E of the Act and belated filing of the TDS returns, submitted that various High Courts and the Coordinate Benches of the Tribunal have taken a stand that the amendment made to U/s. 200A of the Act w.e.f 01/06/2015 is held to be prospective in nature and hence no late fee can be charged U/s. 234E of the Act while processing the TDS returns filed prior to 01/06/2015. He therefore submitted that the levy of late filing fee by the Ld. AO is not applicable in the present cases. Ld. Counsel for the assessee further submitted that on appeal against the order of the Ld. AO, the decision of the Ld. CIT(A) in not condoning the delay in filing the appeal before the FAA is unsustainable in law considering the settled principle that while condoning the delay in filing the appeals substantial justice should prevail over technical consideration. In support of his view, the Ld. Counsel for the assessee relied on the decision of the Coordinate Bench of the Tribunal at Chennai in the case of Works Manager Govt. Central Automobile worksshop, Chennai vs. ITO in ITA Nos. 2432 to 2442/Chny/2019, dated 26/10/2020. 6 7. Per contra, the Ld. DR relied on the orders of the Ld. Revenue Authorities and supported the view taken by the Ld. AO and the Ld. CIT (A). 8. We have heard both the parties and perused the materials available on record. We have also gone through the orders of the Ld. Revenue Authorities as well as the decision of the Coordinate Bench of the Tribunal at Chennai in the case of Works Manager Govt. Central Automobile Workshop, Chennai in ITA Nos. 2432 to 2442/Chny/2019 (supra) cited by the Ld. Counsel for the assessee. It is also noticed that the amendment made to U/s. 200A of the Act w.e.f 01/06/2015 is held to be prospective in nature and hence no late fee can be charged U/s. 234E of the Act while processing the TDS returns filed prior to 01/06/2015. Further, on perusal of the said order of the ITAT, Chennai Bench we find that under the similar set of facts and circumstances, after careful consideration, the Tribunal condoned the delay in filing appeals before the First Appellate Authority and restored the matter to the file of the Ld. CIT(A) with a direction to decide the issues on merits. For the sake of reference, the relevant portion from the order of the Tribunal dated 26/10/2020 is extracted herein below: 7 “4. We have heard Learned Counsels for both sides and perused material available on record along with the order of Ld. CIT(A). We find that the Ld. CIT(A) has dismissed the appeals f iled by the assessee without condoning the delay in filing appeals, even though the assessee has explained the reasons for delay in filing such appeals. According to the assessee, the assessee had filed appeals beyond due date for the reason that at the time of introducing section 234E by the Finance Act, 2015, there was an ambiguity and no clear directions regarding levy of late filing fee under section 234E of the Act for belated filing of TDS returns. However, in the year 2018 various High Courts and Tribunals have taken a clear stand and held that amendment made U/s. 200A of the Act with effect from 01/06/2015 is held to be having prospective in nature and hence no late fee can be charged U/s. 234E of the Act, while processing TDS returns filed prior to 1/6/2015. Based on subsequent judgments of various courts and Tribunals, the assessee felt that appeal can be filed against intimation issued by the Assessing Officer levying late fee U/s. 234E of the Act. We further noted that the assessee has given above explanation before CIT(A), however, the Ld. CIT(A) has not given any reason to discard the reasons given by the assessee for belated filing of appeals but simply dismissed the appeals filed by the assessee on the ground that the assessee did not bring any materials on record to establish that it had taken all possible steps to file appeals within prescribed time or within reasonable period. No doubt, it is duty of the assessee to file appeal within due date. In case, the appeal is not filed within due date prescribed under the Act, then it is for the assessee to give sufficient reasons which prevented from f iling of appeal within due date, but the reasons given by the assessee shall come within the expression „sufficient cause‟. Various Courts and Tribunals have explained the term “sufficient cause”. As per the settled principle a case that arguable / favourable points / contention on merits should not be shut out on the presumption of limitation, leading to such a case being thrown out at the threshold itself in limine. The Hon‟ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji and Others (1987) 167 ITR 471 (SC) while laying down principles for considering matters of condonation of delay in filing appeals have stated that substantial justice should prevail over technical considerations. The ITAT, Bangalore Bench in the case of Dr. C. Fernandes Cooperative Vs. DCIT (supra) held that sufficient 8 cause ought to be interpreted in a manner which subserves and advances cause of substantial justice. In this case, on perusal of record, we find that the reasons given by the assessee for not filing the appeals within the time limit allowed under the Act comes under the expression “sufficient cause” and hence, we are of the considered view that Ld. CIT(A) erred in not condoning the delay in f iling appeals. Therefore, we condone the delay in filing appeals and restore the matter back to the file of the CIT (A) to decide the issues involved in these appeals on merits.” 9. Since the facts involved in the present case before us are similar to that of the case decided by the Coordinate Bench of the Tribunal at Chennai (supra), respectfully following the said decision of the Tribunal as well as following the principle of consistency and considering the nature of issues involved in the present appeal, in the interest of justice, we hereby condone the delay in filing the appeal before the Ld. CIT(A) and restore the matter back to the file of the Ld. CIT(A) to decide the issues involved in the appeal on merits strictly adhering the directions given by the Chennai Bench of the Tribunal in the case of Works Manager Govt. Central Automobile Worksshop, Chennai (supra) and in accordance with law. It is ordered accordingly. 10. In the result, ITA No.09/Viz/2022 filed by the assessee is allowed for statistical purposes as indicated herein above. 9 11. Since the issues, facts and circumstances involved in the other appeals of the assessee ( I.T.A. Nos. 10, 11, 12, 13, 14, 15, 16, 17 & 18/Viz/2022 ) are identical to the appeal (09/Viz/2022) decided by us in the above paras of this order, our decision given thereof mutatis mutandis apply to these appeals also. Accordingly, the appeal I.T.A. Nos. 10, 11, 12, 13, 14, 15, 16, 17 & 18/Viz/2022 are also allowed for statistical purposes. 12. In the result, all the appeals ( I.T.A. Nos. 09, 10, 11, 12, 13, 14, 15, 16, 17 & 18/Viz/2022 ) filed by the assessee are allowed for statistical purposes as indicated herein above. Pronounced in the open Court on the 23 rd June, 2022. Sd/- Sd/- (एस बाऱाक ृ ष्णन) (द ु व्ि ू रु आर.एऱ रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) ऱेखा सदस्य/ACCOUNTANT MEMBER न्याययकसदस्य/JUDICIAL MEMBER Dated : 23.06.2022 OKK - SPS आदेश की प्रतिलिपि अग्रेपिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee – Annapurna Educational and Charitable Society, C/o. Sanskruthi Global School, PS Bonangi, Parawada Mandal, Visakhapatnam, Andhra Pradesh. 10 2. रधजस्व/The Revenue – The Income Tax Officer (TDS), Ward-1, Aayakar Bhavan, Dabagardens, Visakhapatnam. 3. The Principal Commissioner of Income Tax, 4. आयकर आय ु क्त (अऩीऱ)/ The Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi. 5. ववभधगीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, ववशधखधऩटणम/ DR, ITAT, Visakhapatnam 6. गधर्ा फ़धईऱ / Guard file आदेशधन ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam