M/s. Kolar Districk Nirmithi Kendra, Kolar V. The Income Tax Officer, TDS Ward- 2(3), Bengaluru

ITA 1747/BANG/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5942 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-09-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 08-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI BENGALURU
• Assessee Lawyers: G S PRASHANTH
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 234E; 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B R BASKARAN, ACCOUNTANT MEMBER ITA NOS.1747 & 1748/BANG/2019 ASSESSMENT YEARS : 2013-14 & 2014-15 M/S. KOLAR DISTRICT NIRMITHI KENDRA, RISET CAMPUS, KOLAR-BETHAMANGALA ROAD, HONNENAHALLI, TAMAK POST, KOLAR 563 101. PAN: AAAAK 4726G VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CPC (TDS), GHAZIABAD. APPELLANT RESPONDENT APPELLANT BY : SHRI G.S. PRASHANTH, CA RESPONDENT BY : SMT. R. PREMI, ADDL. CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 29 .0 9 .2020 DATE OF PRONOUNCEMENT : 30.09.2020 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND ARE DIRECTED AGAINST SEPARATE, BUT IDENTICAL ORDERS DATED 27.06. 2019 OF THE CIT(APPEALS)-3, BENGALURU RELATING TO ASSESSMENT YE ARS 2013-14 & 2014-15. AS THE ISSUES THAT ARISE FOR CONSIDERATIO N IN BOTH THESE APPEALS ARE COMMON, FOR THE SAKE OF CONVENIENCE, THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY WAY OF THIS COMMON ORDER. 2. THE ASSESSEE MADE PAYMENT FOR WHICH TAX WAS DEDU CTED AT SOURCE. RETURN OF TDS WAS FILED FOR Q1 TO Q4 OF FYS 2012-13 & 2013-14 RELEVANT TO AYS 2013-14 & 2014-15. ITA NOS.1747 & 1748/BANG/2019 PAGE 2 OF 4 3. ORDERS U/S. 200A OF THE INCOME-TAX ACT, 1961 [T HE ACT] WERE PASSED BY THE TDS-CENTRAL PROCESSING CELL (CPC) OF THE INCOME TAX DEPARTMENT FOR THE IMPUGNED ASSESSMENT YEARS 2013-1 4 & 2014-15 HOLDING THAT TDS WAS SHORT DEDUCTED. ACCORDINGLY, A DEMAND WAS RAISED FOR SHORT DEDUCTION OF TAX AND INTEREST U/S. 234E W AS ALSO LEVIED THEREON. 4. ACCORDING TO THE ASSESSEE, THESE ORDERS PASSED U /S. 200A OF THE ACT BY THE TDS-CPC WERE NEVER SERVED ON THE ASSESSEE PH YSICALLY OR OTHERWISE AND HENCE THE ASSESSEE WAS NOT AWARE OF T HE FACT THAT SUCH ORDERS WERE PASSED IN ITS CASE. THE ASSESSEE RECEIV ED A COMMUNICATION DATED 16.10.2018 FROM ITO, TDS WARD 2(3) DEMANDING LATE FILING FEE U/S. 234E OF THE ACT OF RS.6,34,791 OF THE ACT FOR Q2 TO Q4 OF AY 2013-14 AND RS.75,625 FOR Q1 TO Q4 OF AY 2014-15. ACCORDING TO THE ASSESSEE, IT NEVER RECEIVED ANY COMMUNICATION WHATSOEVER EVEN THROUGH ELECTRONIC MEDIA ON THE ISSUE OF PASSING OF ORDERS MENTIONED ABOVE. ACC ORDING TO THE ASSESSEE, ONLY WHEN THE DEMANDS WERE SOUGHT TO BE C OLLECTED BY THE REVENUE BY LETTER DATED 16.10.2018, THE ASSESSEE CA ME TO KNOW OF THESE ORDERS. 5. 5. ON COMING TO KNOW OF THESE DEMANDS, THE ASSES SEE FILED APPEALS BEFORE THE LD. CIT(APPEALS) FOR BOTH THE AS SESSMENT YEARS. THE LD. CIT(A) DISMISSED THESE APPEALS BY HOLDING AS FOLLOW S:- (A) THE ASSESSEE CHALLENGED THE ORDERS PASSED U/S. 200A, BUT A COPY OF THE SAME WAS NOT UPLOADED BY THE ASSESSEE A LONG WITH FORM 35; (B) THE ASSESSEE HAS FILED APPEAL AGAINST LETTER DA TED 16.10.2018 WHICH CANNOT BE EQUATED TO AN APPEAL AGAINST AN ORD ER U/S. 200A OF THE ACT. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT NO ORDERS U/S. 200A WAS SERVED ON THE ASSESSEE TILL DATE AND HENCE THE QUESTION OF ITA NOS.1747 & 1748/BANG/2019 PAGE 3 OF 4 FILING OF THE APPEAL WITH DELAY AND SEEKING CONDONA TION OF DELAY DOES NOT ARISE. IT WAS SUBMITTED, ON COMING TO KNOW OF SUCH ORDERS WHICH HAVE BEEN UPLOADED IN THE PORTAL OF INCOME TAX DEPARTMENT BY THE TDS-CPC, THE ASSESSEE HAD FILED THE APPEALS IMMEDIATELY AND HENC E THERE IS NO DELAY. HE PLEADED THAT THE ISSUE MAY BE SENT BACK TO THE F ILE OF THE AO FOR FRESH CONSIDERATION OF THE MATTER ON MERITS, AS NONE OF T HE AUTHORITIES HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE AND LOOKED INTO THE MATTER ON MERITS. 7. THE LD. DR, ON THE OTHER HAND, THOUGH NOT LEAVIN G HIS GROUND, SUBMITTED THAT THE ISSUE MAY BE RESTORED TO THE FIL E OF THE LD. CIT(APPEALS). 8. AFTER HEARING THE RIVAL CONTENTIONS, WE ARE OF T HE CONSIDERED VIEW THAT THERE IS NO DELAY IN FILING OF THE APPEAL BY T HE ASSESSEE, AS NO ORDER U/S. 200A OF THE ACT FOR BOTH YEARS, HAS BEEN PHYSI CALLY SERVED ON THE ASSESSEE TILL DATE. THESE ORDERS HAVE NOT ALSO BEEN SERVED ELECTRONICALLY. HENCE THE QUESTION OF DELAY IN FILING THE APPEALS D OES NOT ARISE. THE APPEALS, IN OUR VIEW, HAVE BEEN FILED WITHIN THE PE RIOD OF LIMITATION. 9. THE LD. CIT(APPEALS) COULD NOT HAVE DISMISSED TH E APPEALS FOR THE REASON THAT ORDER U/S. 200A WAS NOT FILED ALONG WIT H FORM 35. DEFECTS, IF ANY, COULD HAVE BEEN RECTIFIED BY GIVING NOTICE TO THE ASSESSEE. THE ASSESSEE IS GIVEN LIBERTY TO DOWNLOAD THESE ORDERS FROM THE PORTAL OF THE INCOME TAX DEPARTMENT AND FILE THE SAME BEFORE THE LD. CIT(A) ELECTRONICALLY OR OTHERWISE. 10. THE LD. CIT(A) NOR ANY AUTHORITY HAD CONSIDERED THESE ISSUES ON MERIT AND DISPOSED OF THE SAME IN ACCORDANCE WITH T HE LAW. ONLY THE COMPUTER HAS PROCESSED THE ORDERS. UNDER THE CIRCUM STANCES, IN OUR VIEW, IT WOULD MEET THE ENDS OF JUSTICE, IF THE ORDERS OF CIT(APPEALS) ARE SET ASIDE AND MATTER RESTORED TO THE FILE OF THE CIT(APPEALS) TO CONSIDER THE ISSUE ON MERITS AFRESH. IF THE CIT(APPEALS) FEELS THAT SEPA RATE APPEALS HAVE TO BE ITA NOS.1747 & 1748/BANG/2019 PAGE 4 OF 4 FILED FOR EACH QUARTER OF THE FINANCIAL YEAR FOR WH ICH DEMANDS WERE RAISED, HE SHOULD AFFORD OPPORTUNITY TO THE ASSESSEE TO DO SO. THE CIT(APPEALS) SHOULD CONSIDER ITS OBJECTIONS ON THE MATTER AND TH EREAFTER DISPOSE OF THE CASES ON MERIT IN ACCORDANCE WITH LAW. HENCE WE SE T ASIDE THE IMPUGNED ORDERS FOR BOTH THESE ASSESSMENT YEARS AND RESTORE THE MATTER TO THE FILE OF CIT(APPEALS) FRESH ADJUDICATION IN ACCORDANCE WITH LAW, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11. IN THE RESULT, BOTH THESE APPEALS ARE ALLOWED F OR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2020. SD/- SD/- ( B R BASKARAN ) ( N V VASUDEVAN ) ACCOUNTANT MEMBER VICE PRE SIDENT BANGALORE, DATED, THE 30 TH SEPTEMBER, 2020. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.