Mahadevan Ramakrishan, Chennai V. DCIT Corporate circle 6(2), Chennai

ITA 1566/CHNY/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8642 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-02-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 25-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; TDS
• Section: 143(1); 64; 119

Judgement Text

आयकर अपीलीय अिधकरण, ‘बी’ (एस एम सी) ᭠यायपीठ,चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ (SMC) BENCH, CHENNAI ᮰ी महावीर ᳲसह, उपा᭟यᭃ के समᭃ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT आयकर अपील सं./ITA Nos.: 1566, 1567, 1568, 1569 & 1570/CHNY/2023 िनधाᭅरण वषᭅ/Assessment Years: 2013-14, 2014-15, 2015-16, 2016-17 & 2017-18 Late Shri Mahadevan Ramakrishnan, Rep. by Legal Heir Smt. Malini Ramakrishnan, 46, Rukmani Salai, Kalakshetra Colony, Besant Nagar, Chennai – 600 090. [PAN: AAAPR 8240D] Vs. The Deputy Commissioner of Income Tax, Corporate Circle 6(2), Chennai. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/ Appellant by : Ms. T.V. Muthu Abirami, Advocate ᮧ᭜यथᱮ कᳱ ओर से /Respondent by : Shri D. Hema Bhupal, JCIT सुनवाई कᳱ तारीख/Date of Hearing : 21.02.2024 घोषणा कᳱ तारीख /Date of Pronouncement : 21.02.2024 आदेश/ O R D E R These appeals by the assessee are arising out of the orders of the Addl. / JCIT (Appeals), Mumbai in Order Nos. ITBA /APL/S/ 250/2023-24/1057386142(1), 1057388467(1), 1057390471(1), 1057392142(1) & 1057393830(1) of even date 26.10.2023. The return of income was processed and intimation u/s.143(1) of the Income Tax Act, 1961 (hereinafter the ‘Act’) was issued by the ITA Nos.1566 to 1570/Chny/2023 - 2 - Deputy Commissioner of Income Tax, Central Processing Center (CPC), Bengaluru for the assessment years 2013-14 to 2017-18 vide orders of different dates 28.07.2014/ 03.01.2015/ 22.12.2015/09.10.2016/08.03.2019. 2. At the outset, the ld.counsel for the assessee stated that in all these 5 appeals, the CIT(A) dismissed these appeals ex-parte without allowing reasonable opportunity of being heard and also not condoning the delay. The ld.counsel for the assessee narrated the delay as under:- Assessment year No. of days delay 2013-14 2340 2014-15 2168 2015-16 1835 2016-17 1565 2017-18 692 The ld.counsel for the assessee stated that the assessee was availing alternative remedy and this specific ground was raised before the CIT(A). Since the grounds raised are identical in all these years, we will take the facts and grounds from ITA No.1566/CHNY/2023 for the assessment year 2013-14. The grounds raised before CIT(A) as regards to condonation of delay reads as under:- "1) CPC Intimation under section 143(1) dated 28/07/2014 for the ITA Nos.1566 to 1570/Chny/2023 - 3 - AY 2013-14 was received on 31/08/2014. 2) For the said order appeal ought to be filed on or before 30/09/2014. 3) The delay in filing this appeal is 2340 days (30/09/2014 to25/02/2021). 4) Delay in filing is due to the reason that rectification is sought by filing petition u/s 154. Rectification petition could not be submitted online due to nature of rectification involved being a. 26AS income difference due to cash and mercantile system. b. Spouse life interest i.e. settled property clubbed u/s 64 of the Income Tax Act, 1961. 5) The delay in filing appeal was unintentional and circumstances beyond the appellants control.” The ld.counsel for the assessee filed copy of rectification application filed before the AO i.e., ACIT, Company Circle VI(4), Chennai dated 21.04.2015. The ld.counsel for the assessee agreed that there is inordinate delay in filing of these appeals. It is evident that the delay in the first appeal i.e., for the assessment year 2013-14 is 2340 days but it was due to the reason that the assessee has moved rectification application before the AO for rectification of mistake because the issue is regarding short granting of TDS credit in all these years. The ld.counsel stated that only the issue of grant of credit for TDS in all these years and this will amount to unjust and enrichment of the department. Hence, the ld.counsel requested that delay be condoned and these appeals be admitted ITA Nos.1566 to 1570/Chny/2023 - 4 - and can be sent back to CIT(A) for verification of TDS certificates and adjudication of the issue. 3. On the other hand, the ld. Senior DR contested the condonation of delay and stated that the delay in all these appeals is more than 3 years or 5 years, which is inordinate delay and cannot be condoned but he could not answer that the assessee was not availing alternative remedy. On query from the Bench, the ld.Senior DR could not state whether this rectification application filed by the assessee for assessment year 2013-14 in ITA No.1566/CHNY/2023 vide dated 21.04.2015 is disposed off or not. At this point, the ld.counsel for the assessee made statement at bar that till date, this rectification application has not been disposed off by the AO. 4. After hearing both the sides and going through the facts of the case that the issue in this appeal is non-granting of TDS credit in all these years. The assessee has moved rectification application u/s.154 of the Act pursuing alternative remedy. But once rectification application is not decided by AO till date the assessee moved to Tribunal in appeal. One more fact is that the assessee died on 29.03.2017 and despite the fact that appeal in Form No.35 ITA Nos.1566 to 1570/Chny/2023 - 5 - was signed by legal heir i.e., Smt. Malini Ramakrishnan, the appellate order is passed in the name of deceased person which is in nullity. Further, going by the fact that assessee is availing alternative remedy u/s.154 of the Act, application u/s.154 of the Act has not been disposed off by the AO, I am inclined to condone the delay before CIT(A) and admit the appeal in the office of the CIT(A). For this, I place reliance on the decision of Hon’ble High Court of Madras in the case of Indian Steel Rolling Mills Ltd., vs. Union of India reported in [1994] 119 CTR (Mad) 45, wherein it is held that where alternative remedy is being availed, the delay is to be condoned. Accordingly, I condone the delay in filing the appeal before the CIT(A) and remit the matter back to his file for fresh adjudication. 5. Since the facts and circumstances in all other appeals in ITA Nos.1567 to 1570/CHNY/2023 are identical and the delay in filing of appeal before CIT(A) is narrated above in para 2 in chart form, hence taking a consistent view, I condone the delay before CIT(A) in all these appeals and send the matter back to the file of the CIT(A) and direct him to adjudicate the issues raised in these appeals on merits. ITA Nos.1566 to 1570/Chny/2023 - 6 - 6. In the result, the appeals filed by the assessee in ITA Nos.1566 to 1570/CHNY/2023 are allowed for statistical purposes. Order pronounced in the open court at the time of hearing on 21 st February, 2024 at Chennai. Sd/- (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 21 st February, 2024 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ /CIT 4. िवभागीय ᮧितिनिध/DR 5. गाडᭅ फाईल/GF.