Total Transport Systems Limited, Bengaluru V. The Income Tax Officer, TDS, Ward- 3(3), Bengaluru

ITA 2095/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9289 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Period of limitation; Reasonable cause; TDS; Set aside
• Section: 234E; 200A; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V VASUDEVAN, VICE PRESIDNET AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER ITA NOS.2095,2099, 2101/BANG/2019 ASSESSMENT YEAR : 2013-14 ITA NOS.2092,2093, 2094, 2096, 2097,2098, 2100 & 21 02/BANG/2019 ASSESSMENT YEAR : 2014-15 TOTAL TRANSPORT SYSTEMS LTD., NO.20, 2 ND FLOOR, SRIVARI ENCLAVE, OLD AIRPORT EXIT ROAD, HAL, KONENA AGRAHARA, BENGALURU-560 068. PAN AAACT 3276 C VS. THE INCOME-TAX OFFICER - TDS, WARD-3(3), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SMT. SUMAN LUNKAR, C.A REVENUE BY : SMT. NISHI PADMA, JCIT DATE OF HEARING : 09.01.2020 DATE OF PRONOUNCEMENT : 10.01.2020 O R D E R PER BENCH:- ALL THESE APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST THE ORDERS PASSED BY LD CIT(A)-3, BENGALURU AND THEY RE LATE TO THE DEMAND RAISED U/S 200A OF THE ACT FOR VARIOUS QUART ERS FALLING IN THE FINANCIAL YEARS RELEVANT TO THE ASSESSMENT YEAR 2013-14 AND 2014-15. SINCE THE ISSUE URGED IN THESE APPEALS IS IDENTICAL IN ITA NO.2092 TO 2102/BANG/2019 PAGE 2 OF 9 NATURE, THEY WERE HEARD TOGETHER AND ARE BEING DISP OSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. ALL THESE APPEALS ARE BARRED BY LIMITATION B Y 33 DAYS. THE ASSESSEE HAS FILED A PETITION REQUESTING THE BENCH TO CONDONE THE DELAY. IT IS STATED IN THE PETITION THAT THE APPEA L PAPERS WERE PREPARED INITIALLY FOR ASSESSMENT YEAR WISE. LATER IT CAME TO THE KNOWLEDGE OF THE ASSESSEE THAT SEPARATE APPEAL IS R EQUIRED TO BE FILED FOR EACH OF THE QUARTER FOR WHICH THE LD CIT( A) HAS PASSED THE ORDER. IT IS SUBMITTED THAT THE MANAGING DIRECTOR IS LOCATED IN MUMBAI AND WAS ALSO TRAVELLING. HENCE IT TOOK SOME TIME IN TRANSMISSION AND RE-TRANSMISSION OF DOCUMENTS CAUSI NG DELAY OF 33 DAYS IN FILING THESE APPEALS. 3. WE HEARD LD D.R ON THIS PRELIMINARY ISSUE. HAVING REGARD TO THE SUBMISSIONS MADE BY THE ASSESSEE IN THE PETITIO N, WE ARE OF THE VIEW THAT THERE IS REASONABLE CAUSE IN FILING THESE APPEALS BELATEDLY. ACCORDINGLY WE CONDONE THE DELAY AND ADMIT THE APPE ALS FOR HEARING. 4. IN ALL THESE APPEALS, THE ASSESSEE IS CHALL ENGING THE DECISION OF LD CIT(A) IN REJECTING THE APPEALS IN LIMINE AS NON-MAINTAINABLE AND DEFECTIVE. 5. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS F ILED APPEALS BEFORE LD CIT(A) CHALLENGING THE DEMAND RAISED U/S 234E OF THE ACT FOR THE BELATED FILING OF STATEMENT OF TDS RELATING TO TAX DEDUCTED AT SOURCE UNDER VARIOUS SECTIONS OF THE ACT IN FORM NO .24Q & FORM ITA NO.2092 TO 2102/BANG/2019 PAGE 3 OF 9 NO.26Q FOR VARIOUS QUARTERS FALLING IN THE FINANCIA L YEARS RELEVANT TO ASSESSMENT YEAR 2013-14 AND 2014-15. SHE SUBMITTED THAT THE ASSESSEE DID NOT GET INTIMATIONS OF PROCESSING THE STATEMENT OF TDS, WHEREIN THE DEMAND U/S 234E WAS FIRST RAISED. HENCE THE ASSESSEE WAS NOT AWARE OF THE DEMAND RAISED U/S 234 E OF THE ACT. WHEN THE ASSESSEE HAS VISITED THE INCOME TAX DEPART MENT SITE, IT CAME TO KNOW OF THE OUTSTANDING DEMAND. SINCE THE ASSESSEE COULD NOT DOWNLOAD THE RELEVANT COPIES OF INTIMATIONS, IT DOWNLOADED A REPORT TITLED AS DEFAULT SUMMARY, WHICH CONTAINED DETAILS OF OUTSTANDING DEMAND, WHICH CONSISTED OF DEMAND RAISE D BY WAY OF FEE U/S 234E OF THE ACT FOR BELATED FILING OF STATE MENT OF TDS. SINCE THE ASSESSEE WANTED TO CONTEST THE DEMAND RAISED U/ S 234E OF THE ACT, IT FILED APPEALS BEFORE LD CIT(A) CHALLENGING THE DEMAND. HOWEVER, THE LD CIT(A) OBSERVED THAT THE ASSESSEE H AS NOT FILED COPIES OF INTIMATIONS ISSUED U/S 200A OF THE ACT AN D HENCE THE APPEALS ARE DEFECTIVE. THE LD CIT(A) TOOK THE VIEW THAT THE DEFAULT SUMMARY FURNISHED BY THE ASSESSEE IS ONLY AN ADVIS ORY LETTER AND THE ASSESSEE COULD NOT PREFER ANY APPEAL AGAINST TH E ADVISORY LETTER. EVEN THOUGH THE LD CIT(A) TOOK THE VIEW THAT THE AP PEAL IS ALSO BELATED, HE DID NOT ADJUDICATE THE SAME FOR THE REA SON THAT HE HAD ALREADY DISMISSED THE APPEALS AS DEFECTIVE. 6. THE LD A.R SUBMITTED THAT THE ASSESSEE CAN P REFER AN APPEAL BEFORE LD CIT(A) U/S 246A OF THE ACT AGAINST AN ORD ER WHERE THE ASSESSEE DENIES HIS LIABILITY TO BE ASSESSED UNDER THIS ACT. SHE SUBMITTED THAT IT IS SO STATED IN CLAUSE (A) OF SUB -SECTION (1) OF SEC.246A OF THE ACT. SHE ALSO PLACED HER RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF GE NPACT INDIA P ITA NO.2092 TO 2102/BANG/2019 PAGE 4 OF 9 LTD VS. DCIT (2019)(419 ITR 440)(SC), WHEREIN THE H ONBLE SUPREME COURT HAS HELD THAT ASSESSEE HAS FILED AN APPEAL WH ERE THE ASSESSEE DENIES HIS LIABILITY TO BE ASSESSED UNDER THIS ACT. SHE SUBMITTED THAT SIMILAR VIEW HAS BEEN EXPRESSED BY HONBLE KAR NATAKA HIGH COURT IN THE CASE OF NATIONAL PRODUCTS VS. CIT (197 7)(108 ITR 935)(KAR). SHE SUBMITTED THAT THE ASSESSEE FURNISHE D COPIES OF DEFAULT SUMMARY, SINCE IT DID NOT RECEIVE THE RELEV ANT INTIMATIONS. SHE SUBMITTED THAT THE DEFAULT SUMMARY ALSO REFLE CTS THE DEMAND RAISED UNDER THE INTIMATION PROCESSED U/S 200A OF T HE ACT AND HENCE, IN EFFECT, IT CAN BE CONSIDERED AS A COPY OF INTIMATION ALSO. SINCE THE ASSESSEE DENIES ITS LIABILITY U/S 234E OF THE ACT, IT HAS PREFERRED APPEALS BEFORE LD CIT(A) CHALLENGING THE DEMAND RAISED U/S 234E OF THE ACT. SHE FURTHER SUBMITTED THAT TH E ABOVE SAID DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION RENDERED BY HONBLE JURISDICTIONAL KARNATAKA HIGH C OURT IN THE CASE OF FATERAJ SINGHVI VS. UOI (2016)(73 TAXMANN.C OM 252). 7. SHE FURTHER SUBMITTED THAT THE ASSESSEE HAS F ILED APPEALS IMMEDIATELY AFTER DOWNLOADING OF DEFAULT SUMMARY. SHE SUBMITTED THAT, IF THE DATE OF INTIMATIONS IS CONSIDERED AS T HE DATE OF ORDER AND CONSEQUENTLY IF THE APPEALS ARE CONSIDERED AS DELAY ED, THEN THERE IS REASONABLE CAUSE FOR THE DELAY, SINCE THE ASSESSEE HAS NOT RECEIVED THE RELEVANT INTIMATIONS. ACCORDINGLY, SHE PRAYED THAT THE DELAY, IF ANY, IN FILING APPEALS BEFORE LD CIT(A) SHOULD BE C ONDONED. 8. THE LD D.R, ON THE CONTRARY, SUPPORTED THE ORDERS PASSED BY LD CIT(A). SHE SUBMITTED THAT INTIMATIONS ARE SENT BY ELECTRONIC MODE AND IT IS QUITE POSSIBLE THAT THE ASSESSEE MIG HT NOT HAVE SEEN ITA NO.2092 TO 2102/BANG/2019 PAGE 5 OF 9 THE E-MAIL MESSAGE. SHE FURTHER SUBMITTED THAT THE ASSESSEE COULD ALSO DOWNLOAD COPIES OF INTIMATIONS. SHE FURTHER S UBMITTED THAT IT IS NECESSARY TO ENCLOSE THE ORDERS APPEALED AGAINST . SINCE THE ASSESSEE DID NOT ENCLOSE THE COPIES OF THOSE ORDERS , THE APPEAL PAPERS ARE RENDERED DEFECTIVE AND HENCE THE LD CIT( A) WAS CONSTRAINED TO DISMISS THE APPEALS AS DEFECTIVE. A CCORDINGLY, THE FIRST APPELLATE AUTHORITY HAS NOT DEALT WITH THE IS SUE OF DELAY IN FILING APPEALS, SINCE THE SAME WOULD BE ACADEMIC IN NATURE. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. WE HAVE NOTICED THAT THE LD CIT(A) HAS DISMISSED THE A PPEALS FOR THE REASON THAT THE ASSESSEE DID NOT ENCLOSE THE COPIES OF INTIMATIONS ISSUED U/S 200A OF THE ACT. HOWEVER, IT IS THE SUB MISSION OF THE ASSESSEE THAT IT DID NOT RECEIVE INTIMATIONS AND HE NCE IT HAS ENCLOSED COPY OF DEFAULT SUMMARY, WHICH ALSO DEPI CTS THE DEMAND RAISED UPON THE ASSESSEE U/S 234E OF THE ACT . THERE SHOULD NOT BE ANY DISPUTE THAT THE GRIEVANCE OF THE ASSESSEE IN ALL THE APPEALS FILED BEFORE THE LD CIT(A) RELATED TO T HE DEMAND RAISED U/S 234E OF THE ACT ONLY. THE DEMAND BY WAY OF FEE MENTIONED IN SEC. 234E OF THE ACT IS RAISED FOR THE PERIOD OF DE LAY IN FILING RETURN OF INCOME. WHILE PROCESSING THE STATEMENT OF TDS, THE COMPUTER SYSTEM WOULD BE AUTOMATICALLY COMPUTING THE DEMAND U/S 234E BY CONSIDERING THE DUE DATE FOR FILING STATEMENT OF TD S AND THE ACTUAL DATE OF FILING THE SAME, MEANING THEREBY, THERE WIL L BE NO DISCUSSIONS ON THE BACK GROUND OF THE DEMAND. 10. WE NOTICE THAT THE PROVISIONS OF SEC.246A E NABLE AN ASSESSEE TO FILE APPEAL, IF THE ASSESSEE DENIES HIS LIABILIT Y TO BE ASSESSED ITA NO.2092 TO 2102/BANG/2019 PAGE 6 OF 9 UNDER THE ACT. IN THE INSTANT CASE, THE ASSESSEE D ENIES HIS LIABILITY FOR PAYMENT OF FEE PRESCRIBED U/S 234E OF THE ACT F OR BELATED FILING OF STATEMENT OF TDS AND HENCE THE ASSESSEE HAS PREF ERRED APPEALS BEFORE LD CIT(A). HOWEVER THE LD CIT(A) HAS CONSID ERED THE APPEALS TO BE DEFECTIVE, SINCE THE ASSESSEE DID NOT ENCLOSE COPIES OF INTIMATIONS ALONG WITH THE APPEAL MEMO. 11. AT THIS STAGE, A SPECIFIC QUERY WAS RAISED BY THE BENCH TO THE LD D.R AS TO WHETHER THE (A) DATA GIVEN IN DEFAULT SUMMARY IS CORRECT? AND (B) WHETHER THOSE DATA IS AMENABLE TO MODIFICATIO N BY THE ASSESSEE. THE LD D.R ADMITTED THAT THE DATA GIVEN IN DEFAULT SUMMARY IS CORRECT AND FURTHER THOSE DATA CANNOT BE MODIFIED. HENCE, THE PENDING DEMAND SHOWN IN THE DEFAULT SUMMARY SHOULD BE TAKEN AS CORRECT. THERE IS NO DISPUTE THAT THE DEFAULT SUMM ARY ALSO DEPICTS OUTSTANDING DEMAND RAISED UPON THE ASSESSEE U/S 234 E OF THE ACT. 12. WHEN THE DEMAND MENTIONED IN THE DEFAULT S UMMARY IS CORRECT AND FURTHER THE DEMAND RAISED U /S 234E IS MACHINE COMPUTED DEMAND, IN OUR VIEW, NO USEFUL PURPOSE WIL L BE SERVED IN INSISTING UPON THE COPIES OF INTIMATIONS, SINCE THE SAID INTIMATIONS ALSO WOULD SHOW THE VERY SAME DEMAND RAISED U/S 234 E OF THE ACT. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD CIT(A) SHOULD HAVE PROCEEDED TO DISPOSE OF THE APPEALS BY TAKING COGNI ZANCE OF THE DEFAULT SUMMARY FURNISHED BY THE ASSESSEE ALONG WIT H THE RETURN OF INCOME. ITA NO.2092 TO 2102/BANG/2019 PAGE 7 OF 9 13. EVEN THOUGH WE HAVE STATED THAT THE DEFAULT SUMMARY MAY BE TAKEN AS THE DOCUMENT DEPICTING THE DEMAND, YET WE HAVE BEEN INFORMED BY LD D.R THAT THE ASSESSEE COULD DOWNLOAD THE COPIES OF INTIMATIONS FROM THE INCOME TAX SITE. ACCORDINGLY, WE DIRECT THE ASSESSEE TO DOWNLOAD COPIES OF INTIMATIONS AND IF I T IS NOT ABLE TO DOWNLOAD SO, IT MAY SEEK THE ASSISTANCE OF THE CONC ERNED AUTHORITIES OF INCOME TAX DEPARTMENT FOR DOWNLOADIN G THE INTIMATIONS AND AFTER THE COPIES OF INTIMATIONS ARE DOWNLOADED, THEY MAY BE FILED WITH LD CIT(A). 14. ACCORDING TO LD CIT(A), THERE IS DELAY IN F ILING THE APPEALS BEFORE HIM, IF THE DATES OF INTIMATIONS ARE CONSIDE RED FOR COMPUTING THE PERIOD OF LIMITATION. BEFORE US, THE ASSESSEE HAS EXPLAINED THE BACK GROUND IN FILING APPEALS BEFORE THE LD CIT(A). ACCORDINGLY, THE DELAY, IF ANY, OCCURRED FROM THE DATE OF INTIMATION TO THE DATE OF DOWNLOADING OF DEFAULT SUMMARY DESERVES TO BE CON DONED. ACCORDINGLY WE CONDONE THE DELAY THAT OCCURRED BETW EEN THE DATE OF INTIMATION U/S 200A AND THE DATE OF DOWNLOADING OF DEFAULT SUMMARY. ACCORDINGLY, THE ASSESSEE SHOULD HAVE FI LED APPEAL FROM 30 DAYS OF DATE OF DOWNLOADING OF DEFAULT SUMMARY . THE ASSESSEE MAY VERIFY THE SAME AND IF THERE IS ANY DE LAY, IN THE INTEREST OF NATURAL JUSTICE, WE ALLOW AN OPPORTUNIT Y TO EXPLAIN THE DELAY, IF ANY, BEFORE LD CIT(A), WHICH SHALL BE EXA MINED BY LD CIT(A) IN ACCORDANCE WITH LAW. 15. WE HAVE NOTICED THAT THE LD CIT(A) HAS NOT ADJUDICATED THE APPEALS ON MERITS. IF THERE IS DELAY IN FILING APP EALS AFTER DOWNLOADING OF DEFAULT SUMMARY, THE SAID DELAY AL SO NEEDS TO BE ITA NO.2092 TO 2102/BANG/2019 PAGE 8 OF 9 EXAMINED BY LD CIT(A). ACCORDINGLY, WE ARE OF THE VIEW THAT ALL THE APPEALS UNDER CONSIDERATION ARE REQUIRED TO BE SET ASIDE TO THE FILE OF LD CIT(A). 16. IN VIEW OF THE FOREGOING DISCUSSIONS, WE SE T ASIDE THE ORDERS PASSED BY LD CIT(A) AND RESTORE ALL OF THEM TO THE FILE OF LD CIT(A) IN TERMS OF OUR ORDER DISCUSSED ABOVE. 17. IN THE RESULT, ALL THE APPEALS OF THE ASSES SEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY, 2020. ( N.V VASUDEVAN ) VICE PRESIDENT (B.R B ASKARAN ) ACCOUNTANT MEMBER BANGALORE, DATED, 10 TH JANUARY , 2019. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE ITA NO.2092 TO 2102/BANG/2019 PAGE 9 OF 9 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. 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. ..