Ganpati Chowk Shopping Festival, Pune V. Additional Commissioner of Income Tax,(TDS), Pune

ITA 177/PUN/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2129 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: TDS
• Section: 272A

Judgement Text

आयकर अपीलीय अिधकरण “ए” Ɋायपीठ पुणे मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकरअपीलसं. / ITA No.177/PUN/2019 िनधाᭅरणवषᭅ / Assessment Year : 2011-12 Ganpati Chowk Shopping Festival, AOP, 100/1, Poona Guest House, Laxmi Road, Budhwar Peth, Pune – 411002. PAN: AAAAG 8339 B Vs The Additional Commissioner of Income Tax(TDS). Appellant/ Assessee Respondent /Revenue Assessee by None Revenue by Shri S P Walimbe – DR Date of hearing 28/06/2022 Date of pronouncement 28/07/2022 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the Assessee is directed against the ex-parte order of ld.Commissioner of Income Tax(Appeals)-10, Pune dated 09.08.2017 emanating from the Addl.CIT(TDS)’s order, under section 272A(2)(k)/274 r.w.s 200(3) of the Income-tax Act, 1961 (hereinafter also called as ‘the Act’) for the Assessment Year 2011- 12. The Assessee has raised the following grounds of appeal: “1. Ganpati Chowk Shopping Festival 2010 is the association of persons having Tan No PNEG11514G. 2. It filed TDS Returns u/s 200 (3) in Form No 26Q for the 1 st Quarter of FY 2010.11 on 07.03.2012 against the due date of return 15.7.2010 belated about 601 days. 3. The AOP could not file the TDS returns for the said quarter because of the reason that required PAN Nos of the AOP were not ITA No.177/PUN/2019 for A.Y. 2011-12 Ganpati Chowk Shopping Festival Vs. ADIT(TDS) (A) 2 given by the AOP till February 2012 to the AOP and also the AOP had no knowledge of the newly laid down online filing procedure of filing of TDS returns since that time returns were being filed manually and also there were lot of technical issues , and even the consultants were in confusion as regards the filing or uploading the returns. 4. The tax AOP had already paid the TDS deducted on 21/07/2010, Rs 79,867/- and on 9.3.2011 Rs. 12,010/- including interest Rs 2030/-. Thus, there is no loss to the revenue. 5. Notice is issued u/s 272A (2)K/274 r.w.s 200(3) on 7.11.2012 requiring the AOP to attend on 23.01.2013 on which date the AOP could not inform the authorized representative and hence on that date no body attended. 6. The ex-party order has been issued against the tax AOP levying the penalty u/s 272A (2)K r.w.s 200(3) Rs 60,100/-. On 30/1/2013 immediately after the first hearing was fixed for which nobody attended. 7. The tax AOP has filed the appeal before CIT Appeal Pune 10 Pune. On 7.03.2013 8. The appeal was fixed for hearing for 1 st time on 11.02.2016 on which date adjournment note has been filed. 9. In the meanwhile, the authorized representative of the tax AOP was seriously ill and was on death bed when the next date of hearing fixed on 16.05.2017 and 03 08.2017 and he (CA)could not represent the case before the appellate proceedings before Hon I Commissioner of Income Tax (Appeals) and hence the said Commissioner of Income Tax (Appeals) has passed ex-party the order confirming the penalty up on the tax AOP. 10. The said order was alleged to have been served upon the tax AOP, however either may be served upon one of the employees of the 22-shop owner member or not properly served and the tax AOP is totally unaware of the said order 11. Meanwhile the authorized representative CA Nanai expired sometime after passing the order and his US Based son has come for last rites and went back by locking his office and the tax AOP had no knowledge of this appellate order and only when he noticed the demand of Rs. 60,100/- on income tax website he collected the duplicate order from the income tax department in the month of December 2018. 12. In whole process the tax AOP is having no knowledge of the confirming the penalty levied by the additional commissioner and ITA No.177/PUN/2019 for A.Y. 2011-12 Ganpati Chowk Shopping Festival Vs. ADIT(TDS) (A) 3 therefore he could not take the proper decisions in respect of the same. 13. Being aggrieved the tax AOP has decided to file an appeal before the Hon Income Tax Appellate Tribunal; Pune Bench, Pune. 14. There is a delay in submitting the appeal which is otherwise required to be submitted on or before 26 th October, 2017. However, the delay is for the reasons beyond the control of the AOP and for genuine reasons the separate application for Condonation of delay supported by the affidavit is being filed. 2. Brief facts of the case are that the assessee, Ganpati Chowk Shopping Festival 2010 (hereinafter referred to as appellant), is a association of person consisting of shop keeper in Ganpati Chowk, Pune. The assessee firm filed its return of TDS U/s.200(3) in Form No.26Q for the 1 st Quarter of F.Y. 2010-11 on 07.03.2012. However, statutorily return was required to be filed on 15.07.2010, hence, there was a delay of 601 days. The Assessing Officer(AO) imposed penalty of Rs.60,100/- under provisions of section 272A(2)(k) of the Income Tax Act. 3. Aggrieved by the order of AO, the assessee preferred an appeal before the ld.CIT(A). The ld.CIT(A) held that despite granting opportunities on several occasions, nobody attended on behalf of the assessee. The ld.CIT(A) confirmed the penalty order passed by the AO as the appellant is not interested in prosecuting the appeal. Hence, dismissed the appeal of the assessee. Relevant discussion has been made in Para No.4 of the ld.CIT(A)’s order. ITA No.177/PUN/2019 for A.Y. 2011-12 Ganpati Chowk Shopping Festival Vs. ADIT(TDS) (A) 4 4. Aggrieved by the order of ld.CIT(A), the assessee has approached the Tribunal. 5. At the outset of hearing, no one appeared on behalf of the assessee. 6. The ld.Departmental Representative(ld.DR) for the Revenue relied on the orders of the lower authorities 7. We have heard ld.Departmental Representative for the Revenue and perused the relevant material available on record. On perusal of the order of the ld.CIT(A), it is an admitted position that the ld.CIT(A) has not decided issue on merits, instead, he dismissed the appeal ex-parte. Therefore, the assessee, in our view, should not be precluded an opportunity of hearing on merits. Our view is further strengthened by the decision of Amritsar Bench of the Tribunal in Kashmir Road Lines Vs. DCIT (2021) 123 taxmann.com 5 where in it was held that even when the assessee is not interest in pursuing the appeal, even then, the ld.CIT(A) should dispose of the appeal on merits. In view of the aforementioned reasons, we set- aside the impugned order and remit the matter to the file of the ld.CIT(A) with a direction to dispose of the appeal afresh on merits as per law after allowing a reasonable opportunity of hearing to the assessee. ITA No.177/PUN/2019 for A.Y. 2011-12 Ganpati Chowk Shopping Festival Vs. ADIT(TDS) (A) 5 8. In the result, appeal of the Assessee is allowed for statistical purpose. Order pronounced in the open Court on 28 th July, 2022. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 28 th July, 2022/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune. ITA No.177/PUN/2019 for A.Y. 2011-12 Ganpati Chowk Shopping Festival Vs. ADIT(TDS) (A) 6 S.No Details Date Initials Designation 1 Draft dictated on 26.07.2022 Sr. PS/PS 2 Final Draft placed before author 28.07.2022 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order