VASANTHA BHAVAN HOTEL INDIA P.LTD, CHENNAI V. ACIT,CPC-TDS, GHAZIABAD

ITA 2058/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8740 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 10-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Charitable institution; Principle of natural justice; Retrospective amendment; Tax effect; Condonation of delay; TDS
• Section: 205; 250; 234E; 200A; 201; 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , , [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ] ./I.T.A. NOS.2036, 2037, 2038, 2039, 2040, 2041, 20 42, 2043, 2044, 2045, 2046, 2047, 2048, 2049, 2050, 205 1, 2052, 2053, 2054, 2055, 2056, 2057 AND 2058/CHNY/2019 ! / ASSESSMENT YEARS : 2013-14 (Q2), 2013-14 (Q3) , 2013-14 (Q4), 2013-14 (Q2), 2013-14 (Q3), 2013-14 ( Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3), 2014-15 (Q4) , 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q4), 2015-16 (Q1), 2015-1 6 (Q2), 2015-16 (Q3), 2015-16 (Q4), 2015-16 (Q1), 2015-16 (Q2), 201 5-16 (Q3), 2015- 16 (Q4), 2016-17 (Q1) AND 2016-17 (Q1) M/S. VASANTA BHAVAN HOTEL INDIA PVT. LTD, NO.33, NAMMA VEEDU VASANTA BHAVAN, GANDHI IRWIN ROAD, EGMORE, CHENNAI 600 008. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CPC TDS, GHAZIABAD. [PAN AABCV 8143M] ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. B. RAMAKRISHNAN, C.A. &' '# $ % /RESPONDENT BY : SHRI. AR.V. SREENIVASAN, JCIT. ( ) $ * /DATE OF HEARING : 23-10-2019 +,! $ * /DATE OF PRONOUNCEMENT : 19-11-2019 ITA NO.2036-2058/CHNY/2019 :- 2 -: / O R D E R PER BENCH: THESE TWENTY THREE APPEALS HAVE BEEN FILED BY T HE ASSESSEE DIRECTED AGAINST DIFFERENT ORDERS OF THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS)-17, CHENNAI (HEREINAFTER CALLE D AS CIT(A)) DATED 12.06.2019 FOR THE ASSESSMENT YEARS 2013-14 (Q2), 2013-14 (Q3), 2013-14 (Q4), 2013-14 (Q2), 2013-14 (Q3), 201 3-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3), 2014 -15 (Q4), 2014- 15 (Q1), 2014-15 (Q2), 2014-15 (Q4), 2015-16 (Q 1), 2015-16 (Q2), 2015-16 (Q3), 2015-16 (Q4), 2015-16 (Q1), 2015-16 ( Q2), 2015-16 (Q3), 2015-16 (Q4), 2016-17 (Q1) AND 2016-17 (Q1) RESPECTIVELY. 2. SINCE, THE IDENTICAL FACTS AND ISSUES ARE INVOLVED IN THESE APPEALS, WE PROCEED TO DISPOSE THE SAME VIDE THIS C OMMON ORDER. 3. FOR THE SAKE OF CONVENIENCE AND CLARITY THE FACTS RELEVANT IN ITA NO.2036/CHNY/2019 FOR ASSESSMENT YEAR 2013-14 (Q2) ARE STATED HEREIN. 4. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHENNAI U/S. 250 OF THE INCOME TAX ACT, 1961 IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND THE PRINCIPLES OF NATURAL JUSTICE. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISMISSING THE APPEAL STATING THAT IN THE ABSENCE OF SPECIFIC ITA NO.2036-2058/CHNY/2019 :- 3 -: REASONS FOR DELAY IN FILING THE APPEAL THE DELAY IS NOT CONDONED AND THE APPEAL IS DISMISSED AS BARRED BY LIMITATION. 3. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BY DISMISSING THE APPEAL ON LIMITATION HAS ERRED IN IN DIRECTLY CONFIRMING THE ADDITION OF RS. 15,750/- U/S 234E OF THE INCOME TAX ACT. (TAX EFFECT RS. 15,750/-) 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE PROVISI ONS OF SECTION 200A R.W.S 234E ARE APPLICABLE ONLY FROM 01.06.2015 . 5. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE DECISION RENDERED BY T HE JURISDICTIONAL TRIBUNAL IN THE CASE OF DOLLARS & POUNDS V. THE ASS ISTANT COMMISSIONER OF INCOME TAX, CPC TDS (ITA NOS. 2015 TO 2030/CHNY/2018) 6. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE DECISION RENDERED BY T HE JURISDICTIONAL TRIBUNAL IN THE CASE OF G LNDHIRANI VS DCIT (ITA NO S 1019 TO IO21/MDS/ 2015) [2015] 60TAXMANN.COM 312 PVT LTD. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MAY B E ADDUCED BEFORE OR DURING THE HEARING OF THE APPEAL, IT IS P RAYED THAT THE HONBLE TRIBUNAL MAY BE PLEASED TO DELETE THE FEE L EVIED U/S 234E OF THE ACT AND/OR PASS SUCH OTHER ORDERS AS THIS HO NBLE TRIBUNAL MAY DEEM FIT . 5. . THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT NAMELY M/S. VASANTA BHAVAN HOTEL IND IA PVT. LTD, IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF T HE COMPANIES ACT, 1956. DURING THE FINANCIAL YEAR 2012-13 (Q2) T HE APPELLANT HAD DEDUCTED TAX AT SOURCE AND PAID TO THE CENTRAL GOVE RNMENT. THE APPLICABLE QUARTERLY STATEMENT WAS FILED BELATEDLY ON 04.06.2013 AND IT WAS PROCESSED ON 26.09.2016 AND LEVIED LATE FEE OF F15,750/- U/S. 234E OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ). ITA NO.2036-2058/CHNY/2019 :- 4 -: 6. BEING AGGRIEVED, AN APPEAL WAS FILED BEFORE THE LD. CIT(A). ADMITTEDLY, THERE IS DELAY OF 885 DAYS IN FILING THE APPEAL BEFORE CIT(A). A PETITION FOR CONDONATION OF DELAY BEFORE LD. CIT(A) WAS FILED STATING AS UNDER:- 1. THE INTIMATION U/S 200A OF THE INCOME TAX ACT, 1961 FAR FORM 24Q OF THE SECOND QUARTER OF FY 2012-13 WAS SERVED TO THE DEPONENT ON 26.09.2016. 2. THE DEPONENT IS FILING AN APPEAL AGAINST THE ABO VE INTIMATION U/S 200A OF THE INCOME TAX ACT, 1961 BEFORE THE COMMISS IONER OF INCOME TAX APPEALS-17, CHENNAI ON 30.03.20 19 WITH A DELAY OF 885 DAYS. 3. THE DEPONENT SUBMITS THAT THE INTIMATION U/S 200 A OF THE INCOME TAX ACT, 1961 LEVYING LATE FILING FEE U/S 234E AND INTEREST ON LATE PAYMENT OF TDS WAS RECEIVED BY THE PETITIONER. 4. THE DEPONENT HAD A BELIEF THAT THE ACCOUNTANT HA D PAID THE TDS AND FILED TDS RETURN ON TIME BUT SUBSEQUENTLY ON TH E RECEIPT OF THE INTIMATION FROM THE CPC, GHAZIABAD IT CAME TO THE N OTICE OF THE DEPONENT THAT THE TDS HAS BEEN REMITTED, HOWEVER TH E TDS RETURN WAS NOT FILED BY THE DEPONENTS ACCOUNTANT. 5. THE DEPONENT ON THE RECEIPT OF THE INTIMATION FI LED THE TDS RETURN AND WAS OF AN OPINION THAT FILING OF THE RETURN WOU LD PUT REST TO THE ISSUE AS THE LATE FILING FEE U/S 234E IS APPLICABLE ONLY FROM 01-06- 2015 AND HENCE DID NOT PREFER AN APPEAL. HOWEVER, F INAL INTIMATION WAS RECEIVED FROM THE ASSISTANT COMMISSIONER OF INC OME-TAX, CENTRALIZED PROCESSING CELL TDS FOR PAYMENT OF TAX ARREARS. HENCE DEPONENT PREFERS THIS APPEAL. 6. IT IS MOST HUMBLY AND RESPECTFULLY SUBMITTED THA T THE DELAY IN FILING APPEAL WAS NOT WILLFUL AND DUE TO CIRCUMSTANCES BEY OND THE CONTROL OF THE DEPONENT. 7. THE DEPONENT MOST HUMBLY AND RESPECTFULLY PRAYS BEFORE YOUR AUTHORITY TO KINDLY CONDONE THE DELAY AND ADMIT THE APPEAL. HOWEVER, THE LD. CIT(A) HAD NOT CONDONED THE DELAY AND DISMISSED THE APPEAL IN LIMINE. ITA NO.2036-2058/CHNY/2019 :- 5 -: 7. BEING AGGRIEVED, THE APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. 8. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. ADMITTEDLY, LATE FEES U/S.234E OF THE ACT W AS LEVIED EVEN IN RESPECT OF PERIOD BEFORE THE INSERTION OF PROVISION S OF SECTION 234E OF THE ACT. IT IS SETTLED POSITION OF LAW THAT NO P ROVISION OF THE ACT HAS RETROSPECTIVE EFFECT UNLESS OR OTHERWISE EXPRESSLY MADE RETROSPECTIVELY APPLICABLE. THUS, IT APPEARS THAT ASSESSEE HAS ME RITORIOUS CASE. THE LD. CIT (A) SHOULD HAVE CONSIDERED THE PETITION FOR CONDONATION OF DELAY KEEPING IN VIEW THE JUDGMENT OF HON'BLE SUPR EME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTH ERS (SUPRA) WHEREIN THE FOLLOWING PRINCIPLES WERE LAID DOWN RE LATING TO CONDONATION OF DELAY. 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEF IT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND C AUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAU SE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. ' EVERY DAY'S DELAY MUST BE EXPLAINED ' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EV ERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MU ST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC M ANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO ITA NO.2036-2058/CHNY/2019 :- 6 -: HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE O F A NON- DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK . 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECT ED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHN ICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. FURTHER, THE COURTS HAVE ALWAYS HELD THAT THE DELA Y IS A MATTER OF WHICH COULD BE CONDONED IN THE INTEREST OF JUSTICE . THE JURISDICTIONAL HIGH COURT IN THE CASE OF SREENIVAS CHARITABLE TRUST VS. DCIT (2006) 280 ITR 357 HAD DEPRECIATED METICULOUS APPROACH IN CONSTRUING THE MEANING OF SUFFICIENT CAUSE FOR THE CONDONATION OF DELAY. IN THE LIGHT OF THE ABOVE FACTS AND LAW, WE ARE OF THE CONSIDER ED OPINION THAT THE LD. CIT(A) SHOULD HAVE CONDONED THE DELAY. THEREFOR E WE DIRECT THE LD. CIT(A) TO ADMIT THE APPEAL AND DECIDE THE ISSUE IN APPEAL ON MERITS IN ACCORDANCE WITH LAW AND WE RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.2036/CHNY/2019 FOR ASSESSMENT YEAR 2013-14 (Q2) IS PARTLY ALLOWED FOR STATISTICAL PURPOSE . ITA NO.2036-2058/CHNY/2019 :- 7 -: ITA NOS.2037 TO 2058/CHNY/2019:- 8 . SINCE, THE FACTS IN THE PRESENT APPEALS ARE IDENT ICAL TO THE FACTS IN ITA NO.2036/CHNY/2019, FOR THE REASONS MENTIONED THEREIN, WE PARTLY ALLOW THE APPEALS FOR STATISTICAL PURPOSE F ILED BY THE ASSESSEE ON THE ABOVE LINES INDICATED IN APPEAL ITA NO.2036/CHN Y/2019 SUPRA. HENCE, THE ABOVE CAPTIONED APPEALS FILED BY THE ASS ESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. 9 . IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IN ITA NOS. 2036 TO 2058/CHNY/2019 ARE PARTLY ALLOWED FOR STATISTICA L PURPOSE. ORDER PRONOUNCED ON 19TH DAY OF NOVEMBER, 2019, AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER - ) / CHENNAI . / DATED:19TH NOVEMBER, 2019. KV $ &*01 21!* / COPY TO: 1 . '# / APPELLANT 3. ( 3* () / CIT(A) 5. 16 &*7 / DR 2. &' '# / RESPONDENT 4. ( 3* / CIT 6. 8 9) / GF