Mining Officer, Mohali V. ITO(TDS)-2, Chandigarh

ITA 113/CHANDI/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8792 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 24-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Assessee Lawyers: YOGESH MONGA
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay; TDS; Set aside
• Section: 12A; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 113/CHD/2021 ASSESSMENT YEAR : 2013-14 MINING OFFICER B-65, PHASE-7, MOHALI-160070, PUNJAB THE ITO (TDS) - 2 2 ND FLOOR, C.R. BUILDING SECTOR-17-E, CHANDIGARH-160017 PAN NO: PTLM12857F APPELLANT RESPONDENT !' ASSESSEE BY : SHRI YOGESH MONGA, CA #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 29/07/2021 '()*! & DATE OF PRONOUNCEMENT : 30/07/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT. 25/03/2021 OF THE LD. CIT(A), NATIONAL FACELESS APPEAL CENTRE (NF AC), DELHI. 2. THE REGISTRY HAS POINTED OUT THAT THERE IS DELAY OF 23 DAYS IN FILING THE APPEAL BY THE ASSESSE. THE ASSESSEE MOVED AN APPLIC ATION FOR CONDONATION OF DELAY WHICH READ AS UNDER: SUBJECT: CONDONATION OF DELAY IN SUBMISSION OF APPE AL ITA NO. 112/CHANDI/2021 A.Y. 2012-13 IN THE CASE OF MINING OFFICER VERSUS IT O (TDS)-2, CHANDIGARH FILED ON 24-05-2021- REQUEST FOR THE ORDER OF COMMISSIONER (APPEALS) DATED 02/03/202 1 FOR ASSESSMENT YEAR 2012- 13 RELEVANT TO FINANCIAL YEAR 2011-12 WAS RECEIVED BY THIS OFFICE. THEREAFTER THIS OFFICE, APPROACHED THE COUNSEL TO FILE THE APPEAL B UT DUE TO LOCKDOWN IMPOSED BY THE ADMINISTRATION DUE TO INCREASE IN NUMBER OF COVID CASES, THE APPEAL 2 COULD NOT BE FILED IN TIME AND THE DELAY OF 23 DAYS WAS HAPPENED IN FILING THE APPEAL. THE AFFIDAVIT DETAILING THE AFOREMENTIONED FACTS AND CIRCUMSTANCES MAY KINDLY BE PLACED BEFORE THE HON'BLE APPELLATE TRIBU NAL FOR CONDONATION OF THE SHORT DELAY IN SUBMISSION OF THE APPEAL. YOUR FAITHFULLY FOR MINING OFFICE, MOHALI AND ROPAR SD/- (MINING OFFICER) 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DELAY OCCURRED DUE TO COVID-19 PANDEMIC SITUAT ION WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. HE RELIED THE JUDGMENT OF THE HON'BLE APEX COURT DT. 08/03/2021 IN SUO MOTU WRIT PETITION (CIVIL) NO . 3 OF 2020, COPY OF THE SAID JUDGMENT WAS FURNISHED WHICH IS PLACED ON RECORD. 4. IN HIS RIVAL SUBMISSIONS THE LD. DR COULD NOT CO NTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED THAT DELAY OF 23 DAYS IN FILING THE APPEAL HAPPENED DUE TO COVID- 19 PANDEMIC SITUATION. FOR THE PURPOSES OF THE LIMITATION PERIOD IN FILING THE APPEAL IN SUCH CASES, THE HON'BLE APEX COURT IN THE AFORESAID REFERRED TO SUO MOTU WRIT PETITION VIDE ORDER DT. 08/03/2021 HELD AS UNDER: 2. WE HAVE CONSIDERED THE SUGGESTIONS OF THE LEARNE D ATTORNEY GENERAL FOR INDIA REGARDING THE FUTURE COURSE OF ACTION. WE DEEM IT A PPROPRIATE TO ISSUE THE FOLLOWING DIRECTIONS:- 1. IN COMPUTING THE PERIOD OF LIMITATION FOR ANY SU IT, APPEAL, APPLICATION OR PROCEEDING, THE PERIOD FROM 15.03.2020 TILL 14.03.2 021 SHALL STAND EXCLUDED. CONSEQUENTLY, THE BALANCE PERIOD OF LIMITATION REMA INING AS ON 15.03.2020, IF ANY, SHALL BECOME AVAILABLE WITH EFFECT FROM 15.03.2021. 2. IN CASES WHERE THE LIMITATION WOULD HAVE EXPIRED DURING THE PERIOD BETWEEN 15.03.2020 TILL 14.03.2021, NOTWITHSTANDING THE ACT UAL BALANCE PERIOD OF LIMITATION REMAINING, ALL PERSON SHALL HAVE A LIMITATION PERIO D OF 90 DAYS FROM 15.03.2021. IN THE EVENT THE ACTUAL BALANCE PERIOD OF LIMITATION R EMAINING, WITH EFFECT FROM 15.03.2021, IS GREATER THAN 90 DAYS, THAT LONGER PE RIOD SHALL APPLY. 3 3. THE PERIOD FROM 15.03.2020 TILL 14.03.2021 SHALL ALSO STAND EXCLUDED IN COMPUTING THE PERIODS PRESCRIBED UNDER SECTIONS 23( 4) AND 29A OF THE ARBITRATION AND CONCILIATION ACT, 1996, SECTION 12A OF THE COMM ERCIAL COURTS ACT, 2015 AND PROVISIONS (B) AND(C) OF SECTION 138 OF THE NEGOTIA BLE INSTRUMENTS ACT, 1881 AND ANY OTHER LAWS, WHICH PRESCRIBE PERIOD(S) OF LIMITA TION FOR INSTITUTING PROCEEDINGS, OTHER LIMITS (WITHIN WHICH THE COURT OR TRIBUNAL CA N CONDONE DELAY) AND TERMINATION OF PROCEEDINGS. 4. THE GOVERNMENT OF INDIA SHALL AMEND THE GUIDELIN ES FOR CONTAINMENT ZONES, TO STATE. REGULATED MOVEMENT WILL BE ALLOWED FOR MEDICAL EME RGENCIES, PROVISION OF ESSENTIAL GOODS AND SERVICES, AND OTHER NECESSARY F UNCTIONS, SUCH AS, TIME BOUND APPLICATIONS, INCLUDING FOR LEGAL PURPOSES, AND EDU CATIONAL AND JOB-RELATED REQUIREMENTS. WE THEREFORE BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THE AFORESAID REFERRED TO JUDGMENT DT. 08/ 03/2021 CONDONE THE DELAY AND THE DELAY IS ADMITTED. 6. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE ORDER OF LEARNED ASSESSING OFFICER IS BAD, AND AGAINST LAW AND FACTS. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) HAS ERRED BY NOT CONDONING THE DELAY OF 45 DAYS DESPITE OF FACT THAT THERE WAS NO LAPSE ON PART OF APPELLANT & DELAY WAS CAUSED DUE TO FACT THAT THE D ATE OF RECEIPT OF ASSESSMENT ORDER WAS WRONGLY TAKEN BY STAFF OF COUNSEL. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) HAS ERRED BY CONFIRMING THE DEMAND OF RS. 18,33,376/- MADE BY AS SESSING OFFICER VIDE PARA NO. 14 TO 15 OF ASSESSMENT ORDER. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR WITHDRAW ANY GROUND OF APPEAL BEFORE FINAL HARING. FROM THE AFORESAID GROUNDS IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) IN LIMINE. 7. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON TDS VERIFICATION UNDER SECTION 133A(2A) OF THE INCOME TAX ACT, 1961 (FOR S HORT THE ACT) FOUND THAT THERE WERE CERTAIN DISCREPANCIES AND THAT THE COMPL ETE TCS AS REQUIRED UNDER THE ACT WOULD EITHER NOT BEING COLLECTED BY THE PER SON RESPONSIBLE OR NOT BEING DEPOSITED TO THE CENTRAL GOVERNMENT ACCOUNT WITHIN THE STIPULATED TIME. THE 4 A.O. RAISED THE DEMAND OF RS. 18,33,376/- BY OBSERV ING THAT THE ASSESSEE FAILED TO COLLECT THE TCS ON RS. 4,67,69,807/- BY PASSING THE ORDER ON 20/03/2020. 8. BEING AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL TO THE LD. CIT(A) NATIONAL FACELESS APPEAL CENTRE (NFAC),DELHI WHEREI N THE APPEAL WAS DISMISSED IN LIMINE FOR THE REASON THAT THERE WAS A DELAY OF 45 DAYS IN FILING THE APPEAL. 9. NOW THE ASSESSEE IS IN APPEAL. 10. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING THE APPEAL HAPPENED DUE TO LOCKDOWN WHICH WAS LAID DOWN ON THE SPREAD OF COVID-19 AND THE HON'BLE SUPREME COURT BY TAKING THE COGNIZA NCE OF THE COVID-19 PANDEMIC SITUATION EXTENDED THE PERIOD OF LIMITATIO N FROM TIME TO TIME. HOWEVER THE LD. CIT(A) WITHOUT CONSIDERING THE ABOVE FACTS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE. 11. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED T HE ORDER OF THE LD. CIT(A) HOWEVER COULD NOT CONTROVERT THE AFORESAID CONTENTI ON OF THE LD. COUNSEL FOR THE ASSESSEE. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS AN ADMITTED FACT THAT THE A.O. PASSED THE ORDER ON 20/03/2020 AND THE HON 'BLE APEX COURT VIDE ORDER DT. 23/03/2020 EXTENDED THE PERIOD OF LIMITATION PR ESCRIBED UNDER THE GENERAL LAW OR SPECIAL LAWS WHETHER COMPOUNDABLE OR NOT WIT H EFFECT FROM 15/03/2020 THE SAID PERIOD WAS FURTHER EXTENDED TIME TO TIME. HOWEVER THE LD. CIT(A) WITHOUT CONSIDERING THE AFORESAID ORDER OF THE HON' BLE APEX COURT, DID NOT CONDONE THE DELAY WHICH HE OUGHT TO HAVE DONE. WE T HEREFORE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER CON DONING THE DELAY OF 45 5 DAYS IN FILING THE APPEAL BEFORE HIM AND BY PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 30/07/2021) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 30/07/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR