Allahabad Bank, Naktala Branch, Kolkata V. JCIT, TDS RG.57, KOLKATA, Kolkata

ITA 1384/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9218 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: TAPAS DUTTA
• Keywords: Opportunity of being heard; Competent authority; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.1384/KOL/2014 ( / ASSESSMENT YEAR :2010-2011) ALLAHABAD BANK, NAKTALA BRANCH, 364/23A, NSC BOSE ROAD, KOLKATA-700040 VS. JCIT(TDS), RANGE- 57, 10B, MIDDLETON ROW, 8 TH FLOOR, KOLKATA-700071 ./ ./PAN/GIR NO. : CALA 06329 B ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI TAPAS DUTTA, ADVOCATE /REVENUE BY : MD. GHAYAS UDDIN, JCIT / DATE OF HEARING : 23/02/2017 /DATE OF PRONOUNCEMENT 22/03/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 2010-2011, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI, KOLKA TA, IN APPEAL NO.138/CIT(A)-XVI/JCIT,R-57/13-14/KOL, DATED 28.02. 2014, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE JT.COMMISSONER OF INCOME TAX-TDS (AO),U/S.272A(2)(K)/274 OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 08.12.2011. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED QUARTERLY TDS RETURNS LATE THEREFORE THE ASSESSING OFFICER (TDS) IMPOSED PENALTY ON THE ASSESSEE U/S 272A(2)(K) OF THE ACT A T RS.50,336/- 3. THE CAPTIONED APPEAL IS TIME BARRED BY 32 DAYS. THE ASSESSEE FILED PETITION FOR CONDONATION OF DELAY IN FILING THE SAI D APPEAL. THE ASSESSEE EXPLAINED THE REASONS FOR DELAY STATING THAT ASSESS EE IS A SCHEDULE BANK ITA NO.1384/KOL/2014 ALLAHABAD BANK 2 AND NEED TO TAKE PERMISSION FROM THE COMPETENT AUTH ORITY TO FILE THE APPEAL. THAT IS, IT NEED TO TAKE PERMISSION FROM TH E LAW DEPARTMENT AND THEREFORE THERE WAS DELAY IN FILING THE APPEAL. THE LD DR FOR THE REVENUE DID NOT OBJECT TO CONDONE THE DELAY. AS THE ASSESSE E EXPLAINED THE REASONS FOR DELAY SATISFACTORILY THEREFORE WE CONDO NE THE DELAY IN FILING THE APPEAL AND APPEAL IS ADMITTED FOR HEARING. 4. AGGRIEVED FROM THE ORDER PASSED BY THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHO HAS CONFIRMED THE ORD ER PASSED BY THE AO OBSERVING THE FOLLOWINGS :- ON THE BASIS OF THE ABOVE FACTS, IT IS HELD THAT T HE ASSESSEE PRESENTED THE APPEAL 50 DAYS BEYOND THE DATE OF LIMITATION SP ECIFIED IN SUB-SECTION(2) OF SECTION 249 OF THE ACT, WITHOUT ANY SUFFICIENT CAUS E, THEREFORE, THE DELAY IN FILING THE APPEAL IS NOT CONDONED. THEREFORE, THE APPEAL I S NOT MAINTAINABLE. 5. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT THE COMMISSIONER (APPEALS) -XVI, KOLKA TA ERRED IN REJECTING THE APPELLANT'S SUBMISSION AND THE ORDER IMPUGNED IS TOTALLY BAD IN LAW, ARBITRARY, ILLEGAL AND WITHOUT ANY BASIS AND HAVE NO MERIT. THE APPELLANT IS A PUBLIC SECTOR UND ERTAKING UNDER THE CONTROL OF MINISTRY OF FINANCE, GOVT. OF INDIA AND THE APPELLANT WAS ENGAGED BANKING BUSINESS. 11. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APPR ECIATED THAT DUE TO CONVERSION OF OPERATING SYSTEM BY IMPLEMENTING T HE CENTRAL BANKING SYSTEM (CBS) THROUGH ONLINE BANKING ALL THE BRANCHES SITUATED ALL OVER THE INDIA THE APPELLANT COULD NOT FILE TDS STATEMENTS/RETURNS IN TIME. ILL. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APP RECIATED THAT DUE TO SUCH IMPLEMENTATION/CONVERSATION THEY COULD NOT SUBMIT TDS STATEMENTS/RETURNS IN TIME FOR THE PERIOD INDICATED IN THE NOTICE DATED 14-07-2011. IV. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APPR ECIATED THAT THE IMPLEMENTATION OF OPERATION OF CENTRAL BANKING SYST EM (CBS) IS THE SUFFICIENT AND REASONABLE GROUND FOR NOT FIL ING THE ITA NO.1384/KOL/2014 ALLAHABAD BANK 3 STATEMENT/RETURN IN TIME AND THE DELAY SHOULD HAVE BEEN CONDONED. V. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APPRE CIATED THAT THERE IS NO DELAY IN DEPOSITING TAX DEDUCTED AT SOU RCES AND EVEN IF IN ANY DELAY INTEREST IS PAID FOR DELAYED P AYMENT OF SUCH TAX. VI. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APPR ECIATED THAT IN THE FINANCE ACT, 2005 HAS INSERTED A NEW CLAUSE (K) IN SUB SECTION (2) IN SECTION 272(A) TO IMPOSE PENALTY IN CASE OF FAILURE TO DELIVER OR CAUSED TO BE DELIVERED QUARTERLY RETU RN WITHIN THE TIME SPECIFIED IN NEWLY INSERTED SUBSECTION 1 OF SE CTION 206A. VII. FOR THAT THE JT. COMMISSIONER SHOULD HAVE APPR ECIATED THAT THE APPELLANT HAS/HAD NO MALAFIDE INTENTION FOR NOT FIL ING QUARTERLY RETURN IN TIME AND DELAY WAS OCCURRED DUE TO CHANGE OF OPERATING SYSTEM OF BANK AND ALSO SOME IGNORANCE OF THE BRANCH MANAGERS, BUT THERE IS NO LOSS OF REVENUE OF THE GOVERNMENT. VIII. FOR THAT THE JT. COMMISSIONER SHOULD HAVE AP PRECIATED THAT THE APPELLANT SHOULD NOT BE IMPOSED THE MAXIMUM PENALTY AMOUNT OF RS 50,336/ - IN TERMS OF SECTION 272(A)(2)(K). IX. FOR THAT THE COMMISSIONER (APPEALS) -XVI, KOLK ATA SHOULD HAVE CONSIDERED THAT THERE IS DELAY OF 50 DAYS IN FILLIN G APPEAL AS THE APPELLANT IS PUBLIC SECTOR UNDERTAKING, HENCE, THEY ARE REQUIRED TO GET APPROVAL FROM THE HIGHER AUTHORITY AND THERE BY THERE WAS DELAY. X. FOR THAT THE COMMISSIONER MISCONSTRUED THE SUBM ISSION OF THE LD. ADVOCATE'S, AS SUCH NO OPPORTUNITY WAS GIVEN TO THE APPELLANT FOR GIVING EXPLANATION OF DELAY OF 50 DAY S FOR FILLING APPEAL AS SUCH THE ORDER IS PASSED WITHOUT CONSIDER ING THE REAL POSITION THAT THE DELAY OCCURRED FOR GETTING APPROV AL FROM THE HIGHER AUTHORITY AND UNTIL & UNLESS THE APPROVAL IS GRANTED THE APPELLANT CAN'T FILE APPEAL BEFORE ANY COMPETENT AU THORITY. 2. THE APPELLANT CRAVES TO LEAVE OR ALTER, ADD OR MODIFY IN THE GROUNDS AS STATED HEREIN ABOVE. 5. LD. AR HAS FOR THE ASSESSEE HAS SUBMITTED BEFOR E US THAT THE SAID DELAY OCCURRED FOR GETTING APPROVAL FROM THE HIGHER AUTHORITY AND UNTIL & UNLESS THE APPROVAL IS GRANTED THE APPELLANT CAN'T FILE APPEAL BEFORE ANY COMPETENT AUTHORITY. IN ORDER TO FILE AN APPEAL BEF ORE THE LD CIT(A) THE ITA NO.1384/KOL/2014 ALLAHABAD BANK 4 ASSESSEE NEED TO TAKE APPROVAL FROM THE LAW DEPARTM ENT. ASSESSEE HAS AGREED THAT THERE IS DELAY OF 50 DAYS IN FILLING AP PEAL BEFORE LD CIT(A), AS THE APPELLANT IS PUBLIC SECTOR UNDERTAKING, AND HE NCE, THEY ARE REQUIRED TO GET APPROVAL FROM THE HIGHER AUTHORITY AND THERE BY THERE WAS DELAY .THIS DELAY IS BEYOND THE CONTROL OF THE ASSESSEE T HEREFORE, THE LD CIT(A) SHOULD CONDONE THIS DELAY IN THE INTEREST OF NATURA L JUSTICE. 6. LD. DR FOR THE REVENUE HAS PRIMARILY RELIED ON THE FINDINGS OF THE AO, WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT I N THE SUBMISSIONS OF THE ASSESSE, AS THE PROPOSITIONS CANVASSED BY THE LD AR FOR THE ASSESSE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. AS LD AR FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE IS PUBLIC SECTOR UNDE RTAKING, AND HENCE, THEY ARE REQUIRED TO GET APPROVAL FROM THE HIGHER A UTHORITY AND THEREBY THERE WAS DELAY IN FILING THE APPEAL BEFORE LD CIT( A). AS RIGHTS AND LIABILITIES OF THE ASSESSEE HAS NOT DETERMINED BY T HE LD CIT(A) THEREFORE, WE ARE OF THE VIEW TO REMIT THE MATTER BACK TO THE FILE OF THE LD CIT(A) WITH A DIRECTION TO CONDONE THE DELAY AND ADJUDICATE THE ISSUE AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE, IS ALLOWED FOR ST ATISTICAL PURPOSES. ITA NO.1384/KOL/2014 ALLAHABAD BANK 5 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/0 3/2017. SD/ - (A.T.VARKEY) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 22/03/2017 & ()* /PRAKASH MISHRA ,SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) & ' , / ITAT, KOLKATA 1. / THE APPELLANT- ALLAHABAD BANK, KOLKATA 2. / THE RESPONDENT.-JCIT(TDS),RANGE-57, KOLKATA 3. 4 ( ) / THE CIT(A), KOLKATA. 4. 4 / CIT 5. 56 7 8 , 8 , / DR, ITAT, KOLKATA 6. 7 9 / GUARD FILE. 5 //TRUE COPY//