Nestor Infotech Solutions Private Limited, Bangalore V. Assistant Commissioner Of Income Tax, CPC (TDS), Ghaziabad

ITA 1728/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1504 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Keywords: Rectification of order; Condonation of delay; TDS; Set aside
• Section: 234E; 200A; 201; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.1728 TO 1735/BANG/2019 ASSESSMENT YEARS : 2013-14 & 2014-15 NESTOR INFOTECH SOLUTIONS PVT. LTD., NO.539, THIRD FLOOR, ASHWINI COMPLEX, CMH ROAD, INDIRA NAGAR, BENGALURU-560 038. PAN AADCN 1170 G VS. THE ASST. COMMISSIONER OF INCOME-TAX, CPC (TDS), GHAZIABAD. APPELL ANT RESPONDENT APPELLANT BY : SHRI SANDEEP C, C.A RESPONDENT BY : SMT. R PREMI, ADDL. CIT DATE OF HEARING : 09.12.2019 DATE OF PRONOUNCEMENT : 09.12.2019 O R D E R PER BENCH : THE ASSESSEE HAS FILED THESE APPEALS CHALLENGING TH E ORDERS PASSED BY LD CIT(A) IN RESPECT OF DEMAND RAISED UP ON THE ASSESSEE U/S 234E AND CONSEQUENT INTEREST LEVIED U/S 220(2) OF THE ACT. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. TH E LD AR SUBMITTED THAT THE TDS RETURNS FURNISHED BY THE ASS ESSEE WERE PROCESSED U/S 200A PRIOR TO 1.6.2015, WHEREIN FEE U /S 234E FOR LATE FILING OF TDS RETURNS WERE LEVIED AND ALSO CONSEQUE NT INTEREST U/S 220(2) OF THE ACT WAS CHARGED. THE ASSESSEE FILED SUBSEQUENTLY ITA NO.1728 TO 1735 /BANG/2019 PAGE 2 OF 7 MULTIPLE CORRECTION STATEMENTS TO THE TDS RETURNS F ILED BY IT ORIGINALLY. HENCE RECTIFICATION ORDERS CAME TO BE PASSED U/S 154 OF THE ACT CONSEQUENT TO THE CORRECTION STATEMENTS FIL ED BY THE ASSESSEE. IN THE RECTIFICATION STATEMENTS ALSO, TH E DEMAND U/S 234E AND 220(2) OF THE ACT WERE REFLECTED. HENCE T HE ASSESSEE FILED THE APPEALS BEFORE LD CIT(A) CHALLENGING THE LEVY O F FEE U/S 234E OF THE ACT AND CONSEQUENT LEVY OF INTEREST US/ 220(2) OF THE ACT. HOWEVER THE LD CIT(A) HAS TAKEN THE VIEW THAT THE D EMAND U/S 234E AND 220(2) HAS BEEN RAISED IN THE ORIGINAL ORD ER AND HENCE THE ASSESSEE SHOULD HAVE CHALLENGED THE SAID ORDERS AND NOT THE ORDERS PASSED U/S 154 OF THE ACT. ACCORDINGLY THE LD CIT(A) HAS DISMISSED ALL THE APPEALS FILED BY THE ASSESSEE. 3. THE LD AR SUBMITTED THAT THE DEMAND RAISED U/S 2 34E AND 220(2) OF THE ACT ALSO ARISES OUT OF ORDER PASSED U S/ 154 OF THE ACT AND SINCE THE ASSESSEE WAS PURSUING THE MATTER RELA TING TO TDS RETURNS BY FILING RECTIFICATION PETITIONS, THE LD CIT(A) SHOULD HAVE ADJUDICATED THE APPEAL ON MERITS ALSO. IN THIS REG ARD THE LD AR PLACED HIS RELIANCE ON THE ORDER DATED 3/7/2019 PAS SED BY COORDINATE BENCH IN THE CASE OF M/S PURVANKARA LTD. (ITA NO.1995/BANG/2018). THE LD AR SUBMITTED THAT, ON A LMOST IDENTICAL SET OF FACTS, THE TRIBUNAL HAS RESTORED T HE APPEAL TO THE FILE OF THE LD CIT(A) TO TREAT THE APPEAL FILED BY THE A SSESSEE AS THE APPEALS FILED AGAINST THE ORIGINAL ORDER, IF A PET ITION IS FILED BY THE ASSESSEE BEFORE HIM ALONG WITH THE REQUEST FOR COND ONATION OF DELAY. THE LD AR ACCORDINGLY PLEADED THAT THE LD CIT(A) SH OULD BE DIRECTED TO ADMIT THE APPEALS OF THE ASSESSEE. ITA NO.1728 TO 1735 /BANG/2019 PAGE 3 OF 7 4. WE HEARD THE LD DR AND PERUSED THE RECORD. WE N OTICED THAT THE COORDINATE BENCH HAS DEALT WITH ALMOST AN IDENT ICAL ISSUE IN THE CASE OF PURVANKARA LTD. (SUPRA) AND THE MATTER HAS BEEN RESTORED TO THE FILE OF LD CIT(A) WITH THE FOLLOWING OBSERVA TIONS:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA 4 OF THE ORDER OF ID. CIT (A) FOR READY REFERENCE. '4. IT IS CLEAR FROM THE RELIANCE ON THE SEVERAL DE CISIONS BY THE ASSESSING OFFICER IN SUPPORT OF THE VIEW THA T THE CHARGING OF INTEREST U/S 201 (]A) IS MANDATORY AND BY THE APPELLANT TO SUPPORT THE VIEW THAT IN THE FA CTS OF THE CASE THE INTEREST U/S 201 (]A) IS NOT CHARGE ABLE, THE ISSUE IS DEBATABLE AND THEREFORE SAME DOES NOT COME UNDER IHE PURVIEW OF 'MISTAKE APPARENT FROM RECORD' RECTIFIABLE U/S 154 OF THE ACT. IN SUCH CIRCUMSTANCES, THE UNDERSIGNED DOES NOT FIND ANY INFIRMITY IN THE REJECTION OF APPLICATION U/S 154. ACCORDINGLY, THE APPEAL IS DISMISSED.' 6. THE PRESENT PROCEEDINGS WERE INITIATED BY THE ORDER PASSED BY THE AO U/S 154 IN WHICH HE NOTED TH E SUBMISSION OF THE ASSESSEE THAT THERE WAS A PROBLEM WITH HDFC BANK E-NET FACILITY. IN SPITE OF THIS, TH E AO HAS LEVIED THE INTEREST U/S. 201 (IA) OF IT ACT BY HOLDING THAT CHARGING OF INTEREST U/S. 201 (1A) IS MANDATORY. IN THE SAME ORDER PASSED BY THE AO U/S. 154, IT IS NOTED BY THE AO THAT ASSESSEE HAS WRITTE N A ITA NO.1728 TO 1735 /BANG/2019 PAGE 4 OF 7 LETTER DATED 01 .01.2010 SEEKING RECTIFICATION OF T HE ORDER PASSED U/S. 201(1A) OF THE IT ACT, 1961 ON 23.12.2009 RAISING A DEMAND OF RS. 7,56,143/-. IN OUR CONSIDERED OPINION, IF THE APPEAL OF THE ASSESS EE AGAINST THIS ORDER PASSED BY THE AO U/S. 154 IS CONSIDERED AND DECIDED AS AN APPEAL AGAINST THE ORIGINAL ORDER DATED 23.12.2009 PASSED BY THE AO U/S. 201(1A) OF THE IT ACT, THEN THE ASSESSEE'S ARGUMENTS CAN BE CONSIDERED AND DECIDED ON MERIT INSTEAD OF DISMISSING THE SAME AT THE THRESHOLD ON THIS BASIS THAT THIS IS A DEBATABLE ISSUE AND HENCE , CANNOT BE CONSIDERED U/S. 154. IN THE INTEREST OF JUSTICE AND IN VIEW OF THE FACTS NOTED ABOVE, WE FE EL IT PROPER TO RESTORE BACK THE ENTIRE ISSUE IN THE PRES ENT APPEAL TO THE FILE OF ID. CLT(A) FOR A FRESH DECISI ON. IF THE ASSESSEE MAKES A REQUEST BEFORE ID. CIT(A) TO T REAT THIS APPEAL OF THE ASSESSEE AS AN APPEAL AGAINST TH E ORIGINAL ORDER PASSED BY THE AO U/S. 201(1A) OF THE IT ACT DATED 23.12.2009 ALONG WITH A REQUEST FOR CONDONATION OF DELAY BECAUSE THE PRESENT APPEAL WAS FILED BY THE ASSESSEE BEFORE ID. CIT(A) ON 09.04.20 10 AS NOTED BY ID. CIT(A) ON PAGE NO. 1 OF HIS ORDER A ND THEREFORE, IF THIS APPEAL IS CONSIDERED AS AN APPEA L AGAINST THE ORIGINAL ORDER PASSED BY THE AO U/S. 201(1A) DATED 23.12.2009, THEN THERE IS A DELAY IN FILING APPEAL BEFORE ID. 011(A) AND HENCE, IF THE ASSESSEE MAKES REQUEST FOR CONDONATION OF SUCH DELAY, THE ID. CIT(A) SHOULD FIRST DECIDE ABOUT THE ITA NO.1728 TO 1735 /BANG/2019 PAGE 5 OF 7 REQUEST FOR CONDONATION OF THE DELAY AND IF HE CONDONES THE DELAY, THEN HE SHOULD DECIDE THE APPEA L OF THE ASSESSEE BY CONSIDERING THIS APPEAL AS AN APPEAL AGAINST THE ORIGINAL ORDER PASSED BY THE AO U/S. 201(1A) OF THE IT ACT DATED 23.12.2009. IN VIE W OF THIS DECISION, NO FURTHER ADJUDICATION IS CALLED FOR ON MERIT AND WE DO NOT MAKE ANY COMMENT ON THE MERIT. 5. ACCORDINGLY FOLLOWING THE ABOVE SAID ORDER PASSE D BY COORDINATE BENCH, WE SET ASIDE ALL THE ORDERS PASSE D BY THE LD CIT(A) AND RESTORE ALL THE APPEALS TO THE FILE OF LD CIT(A ) WITH IDENTICAL DIRECTION. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE A SSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER, 2019. SD/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER SD/- (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, THE 9 TH DECEMBER , 2019. /VMS/ ITA NO.1728 TO 1735 /BANG/2019 PAGE 6 OF 7 COPY TO: 1. APPELLANT (S) / CROSS OBJECTOR(S) 2. RESPONDENT(S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE ITA NO.1728 TO 1735 /BANG/2019 PAGE 7 OF 7 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. .. 14. DICTATION NOTE ENCLOSED