M/s. Stallion Finstock Pvt.Ltd., Ahmedabad V. The Jt. CIT, TDS Range, Ahmedabad

ITA 2323/AHD/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8388 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 19-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record; Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORESHRI S.S. GODA RA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NOS. 2321, 2 322 & 2323/AHD/2013 / ASSESSMENT YEAR: 2010-11 TO 2012-13 M/S. STALLION FINSTOCK PVT. LTD., 101, SHITALNATH APARTMENT, NEW VIKASGRUH ROAD, PALDI, AHMEDABAD-380007 PAN : AAFCS 7281 R VS. J OINT COMMISSIONER OF INCOME-TAX TDS RANGE, AHMEDABAD [ / (APPELLANT) / (RESPONDENT) ASSESSEE B Y : SHRI H.V. VASA, CA REVENUE B Y : SHRI N.P. PATEL, SR DR / DATE OF HEARING : 09/09/2017 / DATE OF PRONOUNCEMENT: 05/10/2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER: THESE THREE APPEALS OF THE ASSESS EE FOR AYS 2010-11 TO 2012-13 ARE DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A)-XXI, AHMEDABAD DATED 19.07.2013, ARISING OUT OF SEPARATE ORDERS PASSED BY THE JCIT, TDS RANGE, AHMEDABAD OF EVEN DATE I.E. 29.11.2012 UNDER SECTION 272A(2)(K) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). AS THE ISSUE RAISED IN ALL THESE APPEALS IS COMMON AND RELATING TO SAME ASSESSEE, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GRIEVANCES RAISED BY THE ASSESSEE ARE TO THE EFFECT THAT THE LD. CIT(A) HAS ERRED IN LAW AN D ON FACTS IN :- I) DISMISSING THE APPEAL AS TIME BARRED WITHOUT GIVING AN OPPORTUNITY FOR CONDONATION OF DELAY IN FILING THE APPEAL; ITA NOS. 2321, 2322 & 2323/AHD/2013 M/S. STALLION FINSTOCKPVT LTD VS. JCIT AY :2010-11 TO 2012-13 - 2 II) LEVYING PENALTY OF RS.44,000/ (AY 2010-11), RS.43,900/- (AY2011- 12) AND RS.24,174/- (AY 2012-13) APPLYING THE PROVISIONS OF SECTION 272A(2)(K) OF THE ACT CONSIDERING THAT THE ASSESSEE HAD ERRED IN MAKING LATE PAYMENT OF TDS AND FILING STATEMENT OF TDS LATE IN FORM NO.26Q. 3. THE BRIEF FACTS OF THE CASE ARE TH AT, IN ALL THREE ASSESSMENT YEARS UNDER CONSIDERATION, THE ASSESSEE HAS FILED TDS STATEMENTS IN FORM 26Q FOR QUARTER 1, 2, 3 AND 4 AFTER THE PRESCRIB ED DATE. THE ASSESSING OFFI CER OBSERVED THAT ALL THE THREE ASSESSMENT YEARS, THE ASSESSEE FAILED TO FILE THE TDS STATEMENTS IN TIME AND THEREFORE, COMMITTED DELIBERATE VIOL ATION OF LAW. ACCORDINGLY, HE IMPOSED PENALTY UNDER SECTION 272A(2)(K) OF THE ACT VIDE ORDER EVEN DATED 29.11.2012 FOR ALL THE ASSESSMENT YEARS, CALCULATED ON THE BASIS OF NUMBER OF DAYS DELAY IN FILING QUARTERLY TDS RETURN. 4. AGGRIEVED BY THE AFORESAID ORDER OF THE ASSESSING OFFICER, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A), WHO DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE SAME WAS FILED LATE BY 45 DAYS. 5. AT THE TIME OF HEARING BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE PLEADED THAT A PROPER OPPORTUNITY OF HEARING WAS NOT GIVE N TO THE ASSEASEE; THEREFORE, THE ISSUE RAISED IN THESE APPEALS BE REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTE R PROVIDING ADEQUATE OPPORTUNITY OF THE BEING HEARD TO THE ASSESSEE. 6. LEARNED DEPARTMENTAL REPRESENTATIVE , ON THE OTHER HAND SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AS THE CIT(A) HAS PASSED ORDER U/S 249(2) BY DISMISSING THE APPEAL IN LIMINE AS SAME WAS SUBMITTED BEYOND THE PRESCRIBED TIME LIMIT. 7. WE HAVE HEARD THE RIVAL CONTENTI ONS AND PERUSED THE RECORD PLACED BEFORE US. WE FIND THAT THE ASSESSEE HA S FILED APPEAL IN FORM NO.35 BEFORE THE ITA NOS. 2321, 2322 & 2323/AHD/2013 M/S. STALLION FINSTOCKPVT LTD VS. JCIT AY :2010-11 TO 2012-13 - 3 LD. CIT(A) ON 18.02.2013. THE LD. CIT( A) VIDE ORDER SHEET ENTRY DATED 01.07.2013 REQUIRED THE ASSESSE TO SUBMIT THE EVIDENCE OF RECEIPT OF THE ORDER OF THE DEMAND NOTICE ISSUED BY THE ASSESSING OFFICER, WHICH WAS NOT FURNISHED BY THE ASSESSEE. HOWEVER, ON VERIFICATION OF THE ASSESSMENT RECORDS, IT WAS SEEN BY THE LD. CIT(A) THAT THE SAID ORDER WAS SE RVED UPON THE ASSESSEE ON 03.12.2012, RESULTING INTO 45 DAYS DELAY IN FILING THE APPEAL AND, THEREFORE, LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE, WITHOUT LOOKING INTO THE MERITS OF THE CASE. WE FIND THAT THERE WAS A STATE OF CONFUSION ABOUT THE DATE OF RECEIPT OF NOTICE AT THE END OF ASSESSEE WHICH RE SULTED IN DELAY IN FILING THIS APPEAL. THEREFORE, WE DEEM IT APPROPRIATE IN THE LARGER INTEREST OF JUSTICE TO CONDONE THE ABOVE STATED DELAY OF 45 DA YS IN FILING OF ASSESSEES APPEALS BEFORE THE LOWER AUTHORITY AND DIRECT THE LD. CIT(A) TO DECIDE ALL THESE THREE ASSESSEES APPEALS ON MERITS IN ACCORDANCE WITH LAW AF TER AFFORDING ADEQUATE OPPORTUNITY OF HEARING. 8. IN THE RESULT, ALL THREE APPEALS OF THE ASSESSE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5 TH OCTOBER 2017 AT AHMEDABAD. SD/- SD/- ( S.S. GODARA ) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 05/10/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ) ( / THE CIT(A)- 5. , , /DR,ITAT, AHMEDABAD, 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT.REGISTRAR) ITAT, AHMEDABAD