Smt Radha Rani Mukherjee, Purulia V. DCIT, Cir-57, Kolkata, Kolkata

ITA 1367/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1931 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 16-06-2014
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: P K ROY
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 201(1)

Judgement Text

1 ITA NO.1367/KOL/2014-SMT. RADHA RANI MUKHERJEE A.Y .2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] ITA NO.1367/KOL/2014 ASSESSMENT YEAR : 2008-09 SMT. RADHA RANI MUKHERJEE -VERSUS- D.C.I.T., CIRCLE-57, KOLKATA KOLKATA (PAN:AFFPM 2380 F) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI P.K.ROY, ADVOCATE FOR THE RESPONDENT: SHRI RAJAT KUMAR KUREEL, JCIT.S R.DR DATE OF HEARING : 22.03.2017. DATE OF PRONOUNCEMENT : 05.04.2017. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 10.02.2014 OF CIT(A)-XXIV, KOLKATA RELATING TO A.Y.2008-09. 2. THE APPELLANT HEREIN IS DISTRICT INSPECTOR OF SCHOOLS, PURULIA. THE SALARIES OF TEACHING AND NON TEACHING STAFF OF THE GOVERNMENT O F WEST BENGAL SCHOOLS AND GOVERNMENT AFFILIATED SCHOOLS UNDER THE GOVERNMENT OF WEST BENGAL ARE PAID THROUGH BANKS AND BANKS ARE PAID SERVICE CHARGES FOR THE SE RVICES RENDERED BY THEM. THE FUNDS ARE GIVEN FOR THE PURPOSE OF PAYING SALARIES BY THE GOVT. OF WEST BENGAL AND PLACED AT THE DISPOSAL OF DISTRICT INSPECTOR OF SCHOOLS WH O DISBURSE THE SALARY THROUGH THE BANK. SINCE SERVICE CHARGES ARE PAID TO THE BANKS T HE REVENUE WAS OF THE VIEW THAT THE DISTRICT INSPECTOR OF SCHOOLS WAS BOUND TO DEDUCT T AX AT SOURCE ON THE SERVICE CHARGES PAID TO THE BANKS U/S 194H OF THE INCOME TAX ACT, 1 961 (ACT). ACCORDING TO THE REVENUE THE SERVICE CHARGES WERE IN THE NATURE OF C OMMISSION AND THEREFORE THE APPELLANT HEREIN WAS BOUND TO DEDUCT TAX AT SOURCE WHILE MAKING PAYMENT TO THE BANKS. ORDER U/S 201(1) AND 201(1A) OF THE ACT HOLD ING THE ASSESSEE IN DEFAULT FOR NON 2 ITA NO.1367/KOL/2014-SMT. RADHA RANI MUKHERJEE A.Y .2008-09 DEDUCTION OF TAX AT SOURCE AND INTEREST ON TAX ON N ON DEDUCTION WAS PASSED BY THE AO BY ORDER DATED 30.03.2011. 3. AGAINST THE AFORESAID ORDER THE APPELLANT HER EIN FILED AN APPEAL BEFORE CIT(A). ORDER OF THE AO WAS RECEIVED BY THE ASSESSEE ON 16. 05.2011 AFTER FILING THE APPEAL BY THE APPELLANT ON OR BEFORE 15.06.2011. THE APPEAL W AS HOWEVER FILED BY THE ASSESSEE BEFORE CIT(A) ONLY ON 26.09.2011. THEREFORE THERE W AS A DELAY OF THREE MONTHS AND 10 DAYS IN FILING THE APPEAL BEFORE CIT(A). THE REA SONS FOR THE DELAY IN FILING THE APPEAL WAS EXPLAINED BY THE ASSESSEE AS FOLLOWS :- THE ASSESSEE PLACED ORDERS WITH THE DEALING ASSISTA NT IN LAW CELL FOR FURTHER ACTION. IN THE MEANTIME THE ASSESSEE HAD TO PARTIC IPATE IN THE STATE ASSEMBLY ELECTION AND IN THAT OCCASION WAS SENT FOR TRAINING. THE ORD ER OF AO WAS MISPLACED AND BECAUSE OF THE STATE ASSEMBLY ELECTION DUTIES THE A SSESSEE LOST SIGHT OF THE MATTER. ON 15.09.2011 A NOTICE OF DEMAND WAS RECEIVED FROM THE INCOME TAX OFFICE AND THEREAFTER THE ASSESSEE CONTACTED A TAX CONSULTANT AND FILED T HE APPEAL. 4. THE ABOVE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY CIT(A). ACCORDING TO CIT(A) THE REASONS MENTIONED BY THE ASSESSEE CANNOT SAID TO BE REASONS BEYOND CONTROL OF THE ASSESSEE. CIT(A) ACCORDINGLY REFUSED TO CONDONE THE DELAY IN FILING THE APPEAL. AGGRIEVED BY THE ORDER OF CIT(A) THE APPELL ANT HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IN OUR VI EW THE DELAY IN FILING THE APPEAL OUGHT TO HAVE BEEN CONDONED BY CIT(A). THE FACTS ST ATED BY THE APPELLANT IN THE APPLICATION FOR CONDONATION OF DELAY HAVE NOT BEEN CONSIDERED FALSE BY CIT(A). ACCORDING TO CIT(A) THE APPELLANT WAS CARELESS AND WAS NOT BOTHERED ABOUT LEGAL OBLIGATION. IN OUR VIEW THIS APPROACH OF CIT(A) WAS NOT PROPER. THE APPELLANT DOES NOT STAND TO GAIN BY FILING THE APPEAL BELATEDLY. I T CANNOT BE SAID THAT THERE WAS ANY MALAFIDE INTENTION IN FILING THE APPEAL BELATEDLY. THE REASONS GIVEN BY THE APPELLANT FOR FILING THE APPEAL BELATEDLY BEFORE CIT(A), IN O UR VIEW MAKE OUT A SUFFICIENT CAUSE FOR THE DELAY AND WE CONDONE THE DELAY IN FILING TH E APPEAL BEFORE CIT(A). SINCE 3 ITA NO.1367/KOL/2014-SMT. RADHA RANI MUKHERJEE A.Y .2008-09 CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS WE DIRE CT CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER AFFORDING THE ASSESSEE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS A LLOWED. O RDER PRONOUNCED IN THE COURT ON 05.04.2017. SD/- SD/- [M.BALAGANESH] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05.04.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SMT. RADHA RANI MUKHERJEE, OFFICE OF THE DISTRICT INSPECTOR OF SCHOOLS (SE)PURULIA, P.O.DULMI NADIHA, DISTRICT-PURULIA, PIN: 723102 (WB ). 2. D.C.I.T., CIRCLE-7, KOLKATA. 3. C.I.T.(A)- XXIV, KOLKATA 4. C.I.T-I, KOLKAT A 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES