State Bank of India, Bangalore V. Deputy Commissioner of Income Tax Officer (TDS), Circle -3(1), Bangalore

ITA 1621/BANG/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8079 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 10-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS
• Section: 133A; 201(1); 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “A”, BANGALORE Before Shri George George K, JM & Shri B.R.Baskaran, AM ITA No.1621/Bang/2019 : Asst.Year 2013-2014 M/s.State Bank of India, Metro Branch, No.73 Old Madras Road, Nagavarpalya Bangalore – 560 093. TAN : BLRS35431E. v. The Deputy Commissioner of Income-tax (TDS) Circle 3(1) Bengaluru. (Appellant) (Respondent) Appellant by : Sri.Raghavendra Chakravarthy, CA Respondent by : Sri.Sankar Ganesh K, JCIT-DR Date of Hearing : 22.11.2021 Date of Pronouncement : 22.11.2021 O R D E R Per George George K, JM: This appeal at the instance of the assessee is directed against CIT(A)’s order dated 19.02.2019. The relevant assessment year is 2013-2014. 2. The grounds raised read as follows:- “1. The appellate order of Commissioner of Income Tax (Appeals) dt. 19.12.2019, in so far it is against the appellant is opposed to law, weight of evidence, facts and circumstances of the Appellant's case. 2. The Hon'ble Commissioner of Income Tax (Appeals) has erred in not considering the cause of delay in filing appeal and further erred in dismissing the appeal under the facts and circumstances of the case. 3. The Hon'ble Commissioner of Income Tax (Appeals) has erred in upholding the order of the Assessing Officer without considering the facts arising out of the assessment order under the facts and circumstances of the case. 4. The Hon'ble Commissioner of Income Tax (Appeals) has erred in not considering the fact that the appellant has on ITA No.1621/Bang/2019 M/s.State Bank of India Metro Branch. 2 bona-fide belief did not deduct tax at source on Leave Travel Concession [LTC] paid to its employees under the facts and circumstances of the case. 5. The appellant denies itself liable to pay a sum of Rs.61,913/- u/s 201(1) of the Act under the facts and circumstances of the case. 6. The appellant denies itself liable to pay a sum of Rs.16,097/- u/s 201(1A) of the Act under the facts and circumstances of the case. 7. The appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. For the above and other grounds to be urged during the hearing of the appeal of the appellant prays that the appeal be allowed in the interest of equity and justice.” 3. Brief facts of the case are as follows: There was a survey u/s 133A of the I.T.Act in the Head office of the assessee bank. It was noticed during the course of survey that the assessee bank had allowed the claim of its employees of LTC u/s 10(5) of the I.T.Act, even for foreign travel. Accordingly the order u/s 201(1) and 201(1A) of the I.T.Act was passed for making short deduction u/s 192 of the I.T.Act. 4. Against the orders passed u/s 201(1) and 201(1A) of the I.T.Act, the assessee preferred an appeal before the first appellate authority. There was a delay of 636 days in filing the appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee in limine by not condoning the delay of 636 days in filing the appeal. The relevant finding of the CIT(A), reads as follow:- “3. Aggrieved by this order, appellant has preferred the present appeal. As mentioned in para 1 supra, the appeal has been filed with a delay of 636 days. As per the report of the AO in F.No.SBI/ITO TDS W-3(2)/2018-19 dated 14.02.2019, ITA No.1621/Bang/2019 M/s.State Bank of India Metro Branch. 3 the order u/s 201(1)/201(1A) dated 22.06.2015 was served on 03.07.2015. A copy of the acknowledgement showing proof of service was also enclosed with the AO’s report. Thus there has been a delay of more than one and a half years in filing the appeal. The reason stated in the Form 35 for the delay is that the bank manager was transferred and the new manager was not aware of the order as it was kept under the drawer. The reason fro the delay has been considered and found to be lacking substance. It is seen that the appellant bank has been casual about filing the appeal. Section 249(3) provides that the CIT(A) may admit an appeal filed after the prescribed due date if he is satisfied that the appellant had sufficient cause for not filing the appeal within the prescribed timeline. Hence, the pertinent question is whether there was any delay in filing of the appeal and if so whether the same has been satisfactorily explained. In the case at hand, there was an extraordinary delay of 636 days in filing appeal. The appellant’s reasons for the delay as seen above are not satisfactory. On careful consideration of all aspects of the issue, it is observed that the appellant is negligent in filing the appeal resulting in delay. The Hon’ble Supreme Court in the case of Chief Postmaster General and others v. Living Media India Ltd. and another ITA No.3555/Del/2009 Asst.Year 2002-03 (2012) 348 ITR 7 (SC) and in the case of Pundik Jalam Patil (dead) LRS v. Executive Engineer Jalgaon Medium Projeject (2008) 17 SCC 448 had held that when the conduct of the assessee and facts of the case clearly show the neglect of its own right in preferring appeals, then it is not expected from the judicial and quasi-judicial authorities to inquire into belated and stale claims on the ground of equity. In view of above, as there is no basis to consider condonation of delay of 636 days in the case of the appellant, the appeal of the appellant is dismissed as not admissible being filed beyond the statutory time limit.” 5. Aggrieved, the assessee has filed this appeal before the Tribunal. The learned AR relied on the grounds raised. 6. The learned Departmental Representative strongly supported the orders of the Income Tax Authorities. 7. We have heard rival submissions and perused the material on record. It is not clear from record whether the assessee has filed a petition for condoning the delay of 636 ITA No.1621/Bang/2019 M/s.State Bank of India Metro Branch. 4 days in filing the appeal before the CIT(A). The reasons stated in Form No.35 was that the old bank manager was transferred and new bank manager was not aware of the order passed u/s 201(1) and 201(1A) of the I.T.Act. As rightly pointed out by the CIT(A), the reasons stated in Form No.35 is lacking substance. Even before the Tribunal, inspite of specific query, the learned AR has not produced any proof to show when the old bank manager was transferred and the new manager taken over charge. The learned AR was specifically asked when the new manager became aware of the order passed u/s 201(1) and 201(1A) of the I.T.Act. Though the learned AR had sought time and we had repeatedly granted adjournment, there is no information on the part of the AR for these queries raised by the Bench. The conduct of the assessee is such that there was clear negligence on its part and there is no equitable ground or substantial cause for condoning the delay of 636 days in filing the appeal before the CIT(A). Therefore, we are of the view that the CIT(A) is correctly dismissed the appeal in limine, without condoning the delay of 636 days in filing the appeal before him. For these reasons, the appeal of the assessee stands dismissed. 8. In the result, the appeal filed by the assessee is dismissed Order pronounced on this 22 nd day of November, 2021. Sd/- (B.R.Baskaran) Sd/- (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore; Dated : 22 nd November, 2021. Devadas G* ITA No.1621/Bang/2019 M/s.State Bank of India Metro Branch. 5 Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A)-6 Bengaluru. 4. The Pr.CIT-6, Bengaluru. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore