M/s. Bharat Luxindo Agrifeeds Pvt.Ltd., Palakol V. The ITO, Kakinada

ITA 120/VIZ/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6672 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 07-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K SETHI
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 120 /VIZ/ 201 7 ( / ASSESSMENT YEAR: 20 14 - 1 5 ) M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. POOLAPALLI, PALAKOL (M) WEST GODAVARI DT. [ PAN : VPNBO0645B ] THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) KAKINADA ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI, AR / RESPONDENT BY : S HRI M.K.SETHI , DR / DATE OF HEARING : 0 7 .0 9 .2017 / DATE OF PRONOUNCEMENT : 13 . 0 9 .2017 / O R D E R PER D.S. SUNDER SINGH , ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 10, HYDERABAD VIDE ITA NO.0041/CIT(A) - 10/2015 - 16 DATED 2 8 .0 9 .201 6 FOR THE ASSESSMENT YEAR 2014 - 15. 2 ITA NO. 120 /VIZ/201 7 M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. 2. ALL GROUNDS OF APPEAL ARE RELATED TO THE DISMISSAL OF APPEAL BY THE LD.CIT(A) WITHOUT CONDONING THE DELAY. 3. IN THIS CASE, THE ASSESSING OFF ICER LEVIED PENALTY U/S 201(1)/ 201(1A) BY AN ORDER DATED 12.03.2015 AND THE ASSESSEE WENT ON APPEAL BEFORE THE LD.CIT(A). THE ASSESSEE HAS FILED THE APPEA L WITH THE DELAY OF 34 DAYS AND FILED AN AFFIDAVIT FOR CONDONING THE DELAY VIDE LETTER 17.09.2016 WHICH READS AS UNDER : 5. THEASSES SEE VIDE LETTER DT. 17.09 . 201 6 FILED IN THIS OFFICE ON 21 . 09 . 2016 SUBMITTED AS UNDER : 1.T HE APPELLANT IS A COMPANY ENGAGED IN THE BU SI NESS OF MAN UFACTURE OF AQUA FEED. A SURVEY WAS CONDUCTED IN HE CASE OF THE APPEALLANT COMPANY TO VERIFY THE CORRECTNESS OF THE COMPLAINCE OF TDS PROVISIONS WITH REGARD TO THE FOREIGN REMITTANCE. LATER, SEPARATE ORDERS U/S 201( 1) AND 201(1A) OF THE INCOME TAX ACT, 1961 WERE PASSED HOLDING THE APPELLANT TO THE DEFAULT FOR THE SHORT DEDUCTION OF TAX AT SOURCE. 2. THE ORDERS WERE PASSED FOR A.YS. 2008 - 09, 2010 - 11 AND 2014 - 15 ON 12.03.2015 AND THE SAME HAVE BEEN SERVED ON THE APPELL ANT ON 16.03.2015. AS SUCH THE APPEALS, OUGHT TO HAVE BEEN FILED ON OR BEFORE 15.04.2015. 3. THE DIRECTOR OF THE APPELLANT COMPANY SRI TANUDDIN IS A NATIONAL OF INDONESIA. OWING TO HIS BYSINESSES ACTIVITIES IN INDONESIA, HE HAS TO TRAVEL OFTEN TO HIS HOME COUNTRY. HE IS SOLELY RESPONSIBLE TO CONDUCT THE AFFAIRS OF THE COMPANY. HE WAS IN RECEIPT OF THE ABOVE MENTIONED ORDERS ON 16.03.2015. HE HANDED OVER THE ASSESSMENT ORDERS TO HIS AUDITOR AND REQUESTED HIM TO FILE APPEALS BEFORE THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS). 3 ITA NO. 120 /VIZ/201 7 M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. 4. AS IT WAS THE MONTH OF MARCH, THE AUDITOR WAS FULLY PREOCCUPIED WITH TAX ASSESSMENTS AND OTHER WORKS AND THEREFORE DID NOT PREPARE THE APPEAL IMMEDIATELY. IN THE MEANWHILE, THE DIRECTOR HAD TO LEAVE THE COUNTRY ON 8 TH APR IL, 2015 ON AN URGENT WORK AT INDONESIA. AS HE WAS THE PERSON AUTHORIZED TO FILE APPEAL ON BEHALF OF THE COMPANY, THE APPEAL PAPERS COULD NOT BE FILED WITHIN THE STIPULATED PERIOD DUE TO HIS ABSENCE. 5. THEREAFTER, THE DIRECTOR RETURNED TO INDIA ON 5 TH MA Y 2015. HE DISCUSSED WITH HIS AUDITOR AND PROVIDED THE INFORMATION AND THE DOCUMENTS NECESSARY FOR FILING THE APPEALS. THE APPEALS ARE PREPARED AND COULD BE FILED ON 19 TH MAY 2015, AS SUCH THERE WAS A DELAY OF 34 DAYS IN FILING THE APPEAL. 6. THE APPELL ANT IS ENCLOSING HEREWITH THE COPIES OF THE COVER PAGE OF PASSPORT AND THE NECESSARY IMMIGRATION ENTRIES IN SUPPORT OF THE FACT THAT THE DIRECTOR LEFT INDIA ON 8 TH APRIL, 2015 AND ARRIVED INDIA ON 5 TH MAY 2015. IF THIS PERIOD OF 27 DAYS IS EXCLUDED, THE D ELAY WOULD BE ONLY 7 DAYS. THIS SPECIFIED DELAY WAS DUE TO THE TIME TAKEN FOR PREPARATION OF THE APPEAL PAPERS. 7. THUS, THE DELAY OF 34 DAYS IN FILING THE APPEAL WAS DUE TO REASONS BEYOND THE CONTROL OF THE APPELLANT COMPANY AND WAS NEITHER INTENTIONAL N OR DELIBERATE. THEREFORE, IT IS PRAYED THAT THE SAID DELAY OF 34 DAYS MAY KINDLY BE CONSIDERED AND APPROPRIATE ORDERS MAY BE PASSED IN THE INTERESTS OF SUBSTANTIAL JUSTICE. INCONVENIENCE CAUSED IN THE MATTER IS SINCERELY REGRETTED. 6. THE PETITION WAS NOT ACCOMPANIED BY ANY AFFIDAVIT. THE ASSESSEES REPRESENTATIVE APPEARED ON 26.09.2016 AND FILED AFFIDAVIT WHICH IS REPRODUCED AS UNDER : I, REFERRED TO ABOVE AND AM FULLY ACQUAINTED WITH THE FACTS OF THE CASE. I HEREBY STATE THAT THE AVERMENTS MADE IN THE PETITION FOR CONDONATION OF DELAY IN FILING OF ITA NO.41/2015 - 16 ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 3.1. LD.CIT(A) DISMISSED THE APPEAL FOR NOT EXPLAIN ING THE REASONS FOR THE DELAY FROM 05.05.2015 TO 19.05.2015. THE LD.AR EXPLA INED THAT THE DELAY WAS DUE TO PREPARING THE APPEAL PAPERS AS THE DIRECTOR WAS OUT OF 4 ITA NO. 120 /VIZ/201 7 M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. COUNTRY AND IT WAS NEITHER INTENTIONAL NOR DELIBERATE . THE LD.AR FURTHER SUBMITTED THAT SUBSTANTIAL AMOUNT OF PENALTY WAS LEVIED IN THIS CASE AMOUNTING TO RS.34,35,414/ - AND IF THE DELAY IS NOT CONDONED, IT WOULD CAUSE LOT OF FINANCIAL IN JURY TO THE ASSESSEE. THERE WAS REASONABLE CAUSE FOR NOT REMITTING THE TDS IN TIME AND ASS ESSE HAS GOOD CASE FOR SUCCEEDING IN APPEAL ON MERITS. THEREFORE REQUESTED TO CONDONE THE DELAY AND REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A). 4. ON THE OTHER HAND, LD.DR RELIED ON THE ORDERS OF THE CIT(A). 5. WE HAVE HEARD THE RIVAL SUBM ISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE APPEAL OF THE ASSESSEE WAS FILED WITH DELAY OF 34 DAYS. THE DELAY WAS CAUSED MAINLY DUE TO NON AVAILABILITY OF THE DIRECTOR. AFTER ARRIVAL OF THE DIRECTOR, THE APPEAL WAS PREPARED AND FILED WHICH CAUSED THE DELAY. THE LD.AR SUBMITTED THAT THE ASSESSING OFFICER HAS IMPOSED HUGE PENALTY BUT THE ASSESSEE HAS GOOD CASE FOR GETTING RELIEF BEFORE THE APPELLATE AUTHORITIES ON MERITS . NOT CONDONING THE DELAY WOULD CAUSE GROSS INJUSTICE TO THE ASSESSEE. THEREFORE, WE CONDONE THE DELAY IN THE INTEREST OF THE JUSTICE AND REMIT 5 ITA NO. 120 /VIZ/201 7 M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. THE MATTER BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE APPEAL ON MERITS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. T HE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13 TH SEP 20 17 . SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 13 . 0 9 .2017 L. RAMA, SPS /COPY OF THE ORDER FORWARDED TO: - 1. / THE APPELLANT M/S BHARAT LUXINDO AGRIFEEDS PVT. LTD. , POOLAPALLI, PALAKOL (M) , WEST GODAVARI DT. 2 . / THE RESPONDENT THE INCOME TAX OFFICER, (INTERNATIONAL TAXATION), KAKINADA 3 . / THE CIT (IT&TP), HYDERABAD 4 . ( ) / THE CIT (A) - 10, HYDERABAD 5 . , , / DR,ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM