Sai Durga Housing Estates, Vijayawada V. Income-tax Officer, (TDS), Ward-1, Vijayawada

ITA 163/VIZ/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 4723 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 28-09-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HEMALATHA
• Keywords: TDS; Set aside
• Section: 154; 250; 234E; 200A

Judgement Text

आयकर अपीलीयअधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृ ष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अपील सं./ I.T.A. Nos. 162 & 163/Viz/2021 (ननधधारण वर्ा / Assessment Years : 2015-16) Sri Sai Durga Housing Estates Enikepadu – 521108. PAN: HYDS 28768 F Vs. Income Tax Officer, Ward-1, Vijayawada-520010. (अपीलधथी/ Appellant) (प्रत्यथी/ Respondent) अपीलधथी की ओर से/ Appellant by : Ms. Hemalatha प्रत्यधथी की ओर से / Respondent by : Sri Shri S.P.G. Mudaliar, Sr. AR सुनवधई की तधरीख / Date of Hearing : 05/04/2022 घोर्णध की तधरीख/Date of Pronouncement : 11/04/2022 O R D E R PER S. BALAKRISHNAN, Accountant Member : These appeals are filed by the assessee against the order of the Ld. CIT (A), Vijayawada in appeal No.10335/CIT(A)/VJA/18- 19, dated 28/05/2019 passed u/s. 154 r.w.s 250(6) of the Act for the AY 2015-16. 2 2. In both the appeals, the assessee has raised six identical grounds and therefore for the sake of reference we take the grounds raised in ITA No.162/Viz/2021 which are as follows: “1. That under the facts and circumstances of the case the orders passed U/s. 154 r.w.s 200A of IT Act dated 6/11/2015 and confirmed by the Ld. CIT(A), Vijayawada vide his order in ITA No. 10335 and 10336/CIT(A)/2018-19 dated 28/05/2020 are against the facts of the case and provisions of law. 2. The Ld. CIT(A) erred in not appreciating the fact that the levy of fee U/s. 234E while passing an intimation U/s. 200A for the period prior to 1/6/2015, is a mistake apparent from record in view of the amendment made in the said section 200A by the Finance Act, w.e.f 1/6/2015. 3. The Ld. CIT(A) erred in not appreciating the fact that the action of AO in not following the jurisdictional order of Hon’ble Tribunal in assessee’s own case in respect of the levy of fee U/s. 234E while passing an intimation order U/s. 200A for the period prior to 01/06/2015 is a mistake apparent from record. 4. The Ld. CIT(A) erred in confirming the action of the AO in not considering the decision of Hon’ble Apex Court’s decision in the case of CIT vs. Vegetable Products Ltd [1973] 88 ITR 192, wherein it was held that where there are conflicting decisions in respect of an issue, the decision rendered in favour of the asessee has to be followed. 5. The Ld. CIT(A) by dismissing the appeal, has erred in indirectly confirming the levy of fee U/s. 234E in the order passed U/s. 200A of the Act for Quarter 3 and Quarter 4 of the subject FY 2014-15 totaling to Rs. 1,16,400/- and Rs. 46,000/- respectively which is not in accordance with law. 3 6. For these and other grounds, that may be adduced at the time of hearing of subject appeal, the appellant prays before the Hon’ble Tribunal that the order passed by CIT(A) U/s. 250 of the Act dated 28/05/2019 be quashed by directing the AO to delete the fee levied U/s. 234E of the act in the order passed U/s. 200A or grant such other relief as this authority may deem fit, in the interest of justice. 3. Brief facts of the case are that the assessee has filed quarterly TDS statements with a delay and consequently late filing fee u/s. 234E of the Act was raised on the assessee. The assessee filed a revision petition U/s. 154 of the Act before CPC (TDS) requesting for the deletion of fee charged u/s. 234E of the Act. In response, the CPC (TDS) informed the assessee to contact the jurisdictional AO (TDS) for resolving the issue. The assessee then filed a petition U/s. 154 of the Act before the TDS-AO and the TDS-AO rejected the rectification application of the assessee relying on the order of the Hon’ble ITAT, Visakhapatnam in the appellant’s own case. Aggrieved by the order of the TDS-AO, the assessee filed an appeal before the Ld. CIT (A), Vijayawada. The Ld. CIT(A) after considering the submissions made by the assessee, confirmed the order of the TDS-AO and dismissed the appeal of the assessee vide order dated 28/05/2019. Aggrieved 4 by the order of the Ld. CIT(A). The assessee is in appeal before us. 4. The assessee filed the appeal with a delay of 772 days before the Tribunal and also filed a petition for condonation of delay of 772 days. The assessee also relied on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji & Ors (167 ITR 471) (SC). The Ld. AR stated that the order of the Ld. CIT(A) was communicated to the Learned Counsel for the assessee who appeared before the Ld. CIT(A) after a huge delay. Ld. AR also stated that an affidavit from Mr. B. Seshagiri Rao, Advocate was also filed before the Tribunal. The Ld. AR thus pleaded that there is no fault of the assessee for delay in filing the appeal before the Tribunal. 5. Per contra, the Ld. DR relied on the order of the Ld. CIT(A) and pleaded to uphold the same. The Ld. DR also invited our attention to the item no.3 of the affidavit of Mr. B. Seshagiri Rao wherein it was stated as below: “3. However, since I fell sick in the month of August 2019, due to my age and certain ailments I could not attend my office regularly. I had a heart problem and got myself treated at Care Hospital, Mushirabad, where stent was fixed. In the meantime, though I intimated over the phone to the appellant’s firm I could not pass on the appellate proceedings. Thus, there is no proper communication to the appellant.” 5 6. The Ld. DR stated that the assessee has been intimated over phone by the Ld. Counsel for the assessee who appeared before the Ld. CIT(A) and therefore pleaded that the condonation of delay should not be granted. 7. We have heard both the sides and perused the material available on record. We find from the records produced before us that there was no any reasonable and sufficient cause mentioned by the Ld. AR for filing the appeal beyond the prescribed time limit before the Tribunal. The Ld. AR also acceded to the fact that the Ld. Counsel for the assessee who appeared before the Ld. CIT(A) has intimated about the order of the Ld. CIT(A) over phone to the appellant’s firm. Under these circumstances, we rely on the Civil Appeal No. 7696 of 2021 in the case of Majji Sannemma @ Sanyasirao vs. Reddy Sridevi & Ors wherein the Hon’ble Supreme Court has observed at para 7.4 as under: “7.4. In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bonafides is attributed to the party. It is further observed that even though limitation may harshly affect right of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the 6 framework laid down by this Court. It is further observed that if court start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.” 7.1. Further, at para 9, the Hon’ble Apex Court has held as under: “9. In view of the above and for the reasons stated above, the present Appeal is Allowed. The impugned order dated 16.09.2021 passed by the High Court condoning the delay of 1011 days in preferring the Second Appeal by respondent Nos.1 and 2 herein is hereby quashed and set aside......” 8. We find that there is no merit in the arguments advanced by the Ld AR, as there is no reasonable and sufficient cause and it is only negligence on the part of the assessee for the delay. Therefore, respectfully following the decision of the Hon’ble Supreme Court (supra), we here by dismiss the appeals of the assessee. 9. In the result, both the appeals of the assessee are dismissed. Pronounced in the open Court on the 11 th April, 2022. Sd/- Sd/- (द ु व्वूरु आर.एल रेड्डी) (एस बालाकृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याधयकसदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER Dated : 11.04.2022 OKK - SPS 7 आदेश की प्रनतनलनप अग्रेनर्त/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– Sri Sai Durga Housing Estates, No.12-112, Aravapalli Rajendra Prasad Street, Opp. D-Mart, Enikapadu-521108, Andhra Pradesh. 2. रधजस्व/The Revenue – Income Tax Officer (TDS), Ward-1, Vijayawada- 520010. 3. The Commissioner of Income Tax (TDS), Vijayawada. 4.आयकर आयुक्त (अपील)/ The Commissioner of Income Tax (Appeals), Vijayawada. 5. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम/ DR, ITAT, Visakhapatnam 6.गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam