M/s Primus Retail Pvt Ltd , Bangalore V. Assistant Commissioner of Income TAx (TDS) Circle-16(2), Bangalore

ITA 1216/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2394 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 12-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C H SUNDAR RAO
• Assessee Lawyers: N SUBRAMANIAM
• Keywords: Condonation of delay
• Section: 45(2); 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, B ENGALURU BEFORE S HRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER I TA NO. 1216 / BANG/2 0 1 8 (ASSESSMENT YEAR: 2011 - 12 ) M/S.PRIMUS RETAIL PVT. LTD. S - 515, 5 TH FLOOR, MANIPAL CENTRE, 47, DICKENSON ROAD, BENGALURU. PAN: BLRG0 0609 A VS. APPELLANT ASSISTANT COMMISSIONER OF INCOME - TAX(TDS) CIRCLE 16(2), BENGALURU. RESPONDENT APPELLANT BY : SHRI N.SUBRAMANIAM, CA. RESPONDENT BY : SHRI C.H.SUNDAR RAO, CI T(DR) DATE OF HEARING : 20/08/2018 DATE OF PRONOUNCEMENT : 05/09/2018 O R D E R PER JASON P BOAZ , AM : THIS AP P EAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS) - V, BANGALORE, DATED 20/12/2013 FOR ASSESSMENT YEAR 2011 - 12. 2. BRIEFLY STATED, THE FACTS RELEVANT FOR DISPOSAL OF THIS APPEAL ARE AS UNDER: - 2.1 THE ASSESSEE I S A COMPANY STATED TO BE PREVIOUSLY ENGAGED IN TRADING OF GARMENTS, ETC., BUT IS ADMITTEDLY INOPERATIVE IN THE YEAR UNDER CO NSIDERATION. A SURVEY U/S 133A OF THE INCOME - TAX ACT, 1961 [ FOR SHORT 'THE ACT' ] CONDUCTED IN THE ASSESSMENT S BUSINESS PREMISES ON 1/7/2011 IN ORDER TO VERIFY TDS COMPLIANCE, ITA NO . 1216 /BANG/20 18 PAGE 2 OF 4 REVEALED THAT THE ASSESSEE HAD NOT REMITTED THE TAX DEDUCTED AT SOURCE BY IT, AMOUNTING TO RS.2,39,72,102/ - , TO THE GOVERNMENT ACCOUNT WITHIN THE DUE DATES PRESCRIBED AS PER THE ACT. THIS LAPSE WAS ACCEPTED BY THE ASSESSEE VIDE LETTER DATED 15/2/2012. IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER (AO) VIDE ORDER U/S 201(1) OF THE ACT DATED 22/2/2012, HELD THE ASSESSEE TO BE AN ASSESSEE IN DEFAULT IN TERMS OF THE PROVISIONS OF SECTION 201(1) OF THE ACT AND CHARGED CONSEQUENTIAL INTEREST US 201(1A) OF THE ACT. 2.2 AGGRIEVED BY THE ORDER U/S 201(1) OF THE ACT DATED 22/2/ 2012 FOR ASSESSMENT YEAR 2011 - 12, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) - V, BENGALURU ON 27/2/2013 ; BELATEDLY BY 300 DAYS. THE FORM NO.35, STATEMENT OF FACTS AND ACCOMPANYING DOCUMENTS WERE FILED BY V.BALAJI BHAT AS DIRECTOR OF THE ASSESSEE COMPAN Y. THE LD.CIT(A) - V, BENGALURU, DISMISSED THE ASSESSEE S APPEAL FOR NON - PROSECUTION VIDE THE IMPUGNED ORDER DATED 20/12.2013 AND WITHOUT CONDONING THE DELAY IN FILING THE APPEAL. 3.1 AGGRIEVED BY THE ORDER OF THE CIT(A) - V, BENGALURU, DATED 20/12/ 2013 FOR ASSESSMENT YEAR 2011 - 12, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. 3.2 BEFORE US, WHEN IT WAS POINTED OUT BY THE BENCH THAT EVEN THOUGH THE IMPUGNED ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2011 - 12 WAS DATED 20/12/2013, THE ASSESSEE HAD FILED THIS APPEAL ONLY ON 12/4/2018, ALMOST 4 YEARS LATER, IT WAS SUBMITTED BY THE LD.AR FOR THE ASSESSEE, AS CAN BE SEEN FROM THE PETITION FOR CONDONATION OF DELAY, THAT THE IMPUGNED ORDER WAS RECEIVED BY THE ASSESSEE FROM THE SPECIAL COURT FOR ECONOMIC OFFENCES, BENGALURU, ONLY ON 27/7/2017 AND THE DELAY WAS THEREFORE ONLY OF 199 DAYS. 3.3 BEFORE WE TAKE UP THE ISSUE OF CONDONATION OF DELAY IT IS OF UTMOST RELEVANCE FOR US TO NOTE AND EXAMINE THE PECULIAR FACTS OF THE CASE ON HAND. ON A PERUSAL OF THE DETAILS ON RECORD IT IS SEEN THAT AFTER THE ORDER OF ASSESSMENT FOR ASSESSMENT YEAR 2011 - 12 WAS PASSED VIDE ORDER DATED 22/02/2012 AND BEFORE THE APPEAL WAS FILED ITA NO . 1216 /BANG/20 18 PAGE 3 OF 4 BEFORE THE CIT(A) - V, BENGALURU ON 27/2/2013, THE ASSESSEE COMPANY WAS WOUND UP BY THE ORDER OF THE HON BLE KARNATAKA HIGH COURT VIDE C OMPANY P ETITION NO.30/2012 DATED 8/10/2012 DIRECTING THE OFFICIAL LIQUIDATOR ( OL ) TO TAKE OVER THE AFFAIRS OF THE ASSESSEE - COMPANY. IT APPEARS THAT IN SPITE OF THIS, THE ASSESSEE S APPEAL IN FOR M NO.35, FILED ON 27/2/2013 BEFORE CIT(A) - V, BENGALURU WAS NOT FILED BY THE OL BUT WAS WRONGLY SIGNED AND VERIFIED BY ONE SHRI V. BALAJI BHAT, DIRECTOR OF THE ASSESSEE - COMPANY. FROM A PERUSAL OF THE IMPUGNED ORDER OF THE CIT(A), WE FIND THAT THE ABOVE F ACTS I.E. OF THE ASSESSEE COMPANY BEING WOULD UP BY THE HON BLE KARNATAKA HIGH COURT ORDER DATED 8/10/2012; THE APPOINTMENT OF OFFICIAL LIQUIDATOR ( OL ), THE FACT OF THE O.L TAKING OVER THE ASSETS AND BOOKS OF THE ASSESSEE - COMPANY ETC. WERE NOT BROUGHT TO THE NOTICE OF THE LD.CIT( A ) IN THE COURSE OF APPELLATE PROCEEDINGS. IN TERMS OF THE ABOVE FACTS OF THE CASE AND PROVISIONS OF SECTION 249(1) OF THE ACT R.W. RULES 45 AND 46 OF THE IT RULES, 1962, WE ARE OF THE VIEW THAT T HE APPEAL FILED BEFORE THE CIT(A ) , BENGALURU WAS ITSELF INVALID AND OUGHT TO HAVE BEEN DISMISSED IN LIMINE. 3.4 WE HAVE CAREFULLY PERUSED THE FORM NO.36 FILED IN THE NAME OF THE ASSESSEE COMPANY ON 12/4/2018, THE GROUNDS OF APPEAL AND OTHER ATTACHMENTS FILED BEFORE US AND FIND THAT THEY HAVE BEEN VERIFIED AND SIGNED BY ONE SHRI V.BALAJI BHAT, SAID TO BE EX - DIRECTOR OF THE ASSESSEE COMPANY. IN VIEW OF THE FACT THAT THE ASSESSEE COMPANY WAS WOU N D UP BY THE DECISION OF THE HON BLE KARNATAKA HIGH COURT DATED 8/10/2012 (SUPRA) AND A N OFFICIAL LIQUIDATOR BEING APPOINTED BY THAT ORDER, THE ERSTWHILE DIRECTORS OF THE ASSESSEE COMPANY ARE RENDERED FUNCTUS OFFICIO AND THEREFORE THE PERSON WHO VERIFIED AND SIGNED THE FORM NO.36 AND ATTACHMENTS THERETO HAS DONE SO IN CLEAR VIOLATION OF THE PROVISIONS OF SECTION 253(6) OF THE ACT R.W. RULES 45(2) AND 47(1) OF THE IT RULES, 1962 ( THE RULES ). THE CONSEQUENCES OF WINDING UP OF A COMPANY ARE, INTER ALIA , THAT (I) AN OFFICIAL LIQUIDATOR ( OL ) IS APPOINTED AND HE TAKES OVER THE ADMINISTRATION OF THE COMPANY; AND (II) THE POWERS OF THE BOARD OF DIRECTORS WILL CEASE AND WILL NOW VEST IN THE OL . THIS ITA NO . 1216 /BANG/20 18 PAGE 4 OF 4 BEING THE FACTUAL MATRIX OF THE CASE, AS DISCUSSED ABOVE AND IN VIEW OF PROVISIONS OF SECTION 253(6) OF THE ACT R.W. RULES 45(2) AND 47 OF THE RUL ES, WE ARE OF THE CONSIDERED VIEW AND HOLD THAT THE PRESENT APPEAL FOR ASSESSMENT YEAR 2011 - 12 FILED ON 12/4/2018 IN FORM NO .36 AND ATTACHMENTS THERETO ARE INVALID AND NON EST AND THEREFORE DISMISS THE APPEAL IN LIMINE. 4. IN THE RESULT, THE ASSESSEE S APP EAL FOR ASSESSMENT YEAR 2011 - 12 IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH SEPTEMBER, 201 8. S D/ - SD/ - ( SUNIL KUMAR YADAV ) ( JASON P BO AZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 05/ 0 9 /201 8 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE