M/s.Jimco Exim & Trade P. Ltd, Cochin V. The DCIT, Cochin

ITA 238/COCH/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8596 (ITAT-COCHIN)
• Duration Of Justice: 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 20-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANTOM BOSE
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 11

Judgement Text

ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S . 73/COCH/2016 (ASST YEAR 2013 - 14) & ITA NOS 237 TO 239/COCH/2016 ( A SST YEAR 2013 - 14 ) M/S JIMCO EXIM & TRADE PVT LTD 37/398 KIZHAKKEDAT H ARCADE S C B ROAD PO KADAVANTHRA KOCHI 20 VS THE JT COMMR OF INCOME TAX(TDS) KOCHI ( APPELLANT) (RESPONDENT) PAN NO. CHNJ01132F ASSESSEE BY SH GEORGE THOMAS REVENUE BY SH SHANTOM BOSE, CIT - DR DATE OF HEARING 1 ST J UNE 2016 DATE OF PRONOUNCEMENT 2 ND JUNE 2016 OR D ER PER BENCH : THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) DATED 27 TH NOV 2015, PERTAINING TO AYS 2013 - 14. 2 WHEN THESE APPEALS WERE TAKEN UP FOR HEARING, IT WAS NOTICED T HAT THE APPEALS WERE FILED BELATEDLY BY 98 DAYS. THE ASSESSEE HAS FILED A PETITION STATING THEREIN THE REASONS FOR DELAY IN FILING THESE APPEALS. ON PERUSAL OF THE PETITION FOR CONDONATION OF DELAY, WE ARE OF THE OPINION THAT THERE IS REASONABLE ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 2 CAUSE IN FILING THESE APPEALS BELATEDLY AND HENCE, WE CONDONE THE DELAY AND PROCEED TO DISPOSE OFF THESE APPEALS ON MERITS. 3 I DENTICAL ISSUE IS RAISED IN THESE APPEALS; HENCE , THEY ARE DISPOSED OFF BY THIS CONSOLIDATED ORDER. T H E GROUND RAISED IS IDENTICAL FOR ALL THE ASSESSMENT YEARS . THE GROUND IN ITA NO. 73/COCH/2016 IS REPRODUCED BELOW FOR READY REFERENCE: THE LAW INTRODUCED THROUGH SECTION 234E OF I T ACT TO CHARGE FEE FOR LATE FILING OF TDS RETURN WAS AN ENTIRELY NEW ONE. THE ORDER WAS PASSED BY DEPUTY C OMMISSIONER, CPC, TDS, GHAZIABAD IN UP. AS IT WAS A NEWLY INTRODUCED LAW, IT WAS CONFUSING AS TO WHETHER IT WAS APPEALABLE OR NOT, AND IF AT ALL APPEALABLE, TO WHOM SHOULD THE APPEAL BE FILED AGAINST AN ORDER PASSED BY DY COMMISSIONER FROM GHAZIABAD IN UP. THE DELAY WAS ONLY OF 30 DAYS. ON THE ABOVE GROUNDS AND SUCH OTHER GROUNDS AS MAY BE ADDUCED AT THE TIME OF HEARING, THE ORDER OF THE CIT(A) DISMISSING WITHOUT CONDONING THE DELAY IS GRANT NATURAL JUSTICE. 4 BRIEFLY STATED THE FACTS OF THE CASE ARE AS F OLLOWS: THE ASSESSEE IS A PRIVATE LIMITED COMPANY. WHILE PROCESSING THE TDS STATEMENT IN FORM NO.24Q AND 26Q FOR THE 2 ND , 3 RD AND 4 TH QUARTER OF THE FY 2012 - 13, IT IS OBSERVED THAT THERE IS A DELAY IN FILING THE STATEMENTS . T HERE FORE, DY CIT(TDS), GHAZIABAD IMPOSED LATE FILING FEE U/S 234E OF THE I T ACT AND THE INTIMATION U/S 200A DATED 11 . 11.2013 WAS ISSUED TO THE ASSESSEE. 5 AGGRIEVED BY THE LEVY OF FEE U/S 234E, THE ASSESSEE PREFERRED APPEALS TO THE FIRST APPELLATE AUTHORIT Y. THE APPEALS FILED BEFORE THE FIRST APPELLATE AUTHORITY ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 3 WERE FILED BELATEDLY BY 30 DAYS. THE ASSESSEE HA D ALSO FILED PETITION FOR CONDONATION OF DELAY . THE CIT(A), AFTER PERUSING THE PETITION FOR CONDONATION OF DELAY , DISMISSED THE APPEALS OF THE ASSESS EE IN LIMINE WITHOUT CONDONING THE DELAY IN FILING THE APPEALS. THE RELEVANT FINDINGS OF THE CIT(A) READ AS FOLLOWS: 7 I HAVE CONSIDERED THE PETITIONS FOR CONDONATION OF DELAY FILED BY THE APPELLANT. FILING APPEAL IS A RIGHT AVAILABLE TO THE ASSESSEE BUT THE SAME HAS TO CONFIRM THE DUE PROCEDURES AS PRESCRIBED U/S 2349(2) OF THE INCOME TAX ACT. NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME LIMIT EMPOWERS THE CIT(A) NOT TO ADMIT THE APPEAL UNLESS THE APPELLANT HAD SUFFICIENT CAUSED FOR NOT FILING TH E APPEAL WITHIN THE PRESCRIBED TIME LIMIT. THE REASONS GIVEN BY THE APPELLANT IN THE PETITIONS ARE VERY VAGUE AND NOT SUPPORTED BY PROPER EVIDENCES. IN VIEW OF THE ABOVE, I AM OF THE OPINION THAT THE APPELLANT COULD NOT EXPLAIN SATISFACTORILY THE DELAY OF 30 DAYS IN FILING THE APPEAL. THEREFORE, THE CONDONATION OF DELAY IN FILING THE APPEALS ARE NOT ALLOWED. ACCORDINGLY, THE FOUR APPEALS FILED BY THE APPELLANT IN ITA NOS. 173/TDS/EKM/CIT - (A)III/2013 - 14, 174/TDS/EKM/CIT - (A)III/2013 - 14, 175/TDS/EKM/CIT - (A)III /2013 - 14, AND 176/TDS/EKM/CIT - (A)III/2013 - 14 ARE DISMISSED AS NOT BEING ADMITTED., 6 THE LD AR RELIED ON THE GROUND RAISED BEFORE THE TRIBUNAL . ON THE OTHER HAND, THE LD DR RELIED ON THE ORDER OF THE CIT(A). 7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. THE CONDONATION PETITION WAS REJECTED BY THE CIT(A) FOR THE REASONS THAT THE ASSESSEES REASONS GIVEN FOR THE DELAY IN FILING THE APPEALS BEFORE THE CIT(A) ARE VAGUE AND IS NOT SUPPORTED BY PROPER EVIDENCES. SECTION 234E WA S INSERTED BY FINANCE ACT 2012 W.E.F 1.7.2012; THEREFORE , THE IMPOSITION OF FEE U/S 234E WAS A NEW SUBJECT FOR THE AY 2013 - 14. THE INTIMATION U/S 200A OF THE I T ACT WAS SENT BY THE DY COMMISSIONER, CPC (TDS), GHAZIABAD. THE ASSESSEES AUDITOR WAS ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 4 BASED I N BANGALORE AND THERE WAS DOUBT WITH REGARD TO THE FEE IMPOSED U/S 234E WHETHER IT APPEALABLE OR NOT . THERE WAS FURTHER DOUBT WHETHER APPEALS ARE TO BE PREFERRED IN KOCHI OR GHAZIABAD, S INCE THE INTIMATION U/S 200A OF THE ACT WAS SENT BY THE DY CO MMISSIONE R, CPC (TDS) GHAZIABAD . 7.1 THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS MST KATIJI REPORTED IN (1981) 66 STC 228 HAD HELD THAT THE APPELLANT IS IN NO WAY BENEFITED BY FILING AN APPEAL BELATEDLY AND IF A MERITORIOUS MATTER WH ICH DESERVED A DECISION FROM THE APPELLATE AUTHORITY WOULD BE THROWN OUT AT THE THRESHOLD ITSELF , WOULD LEAD TO INJUSTICE; THEREFORE, TH E DELAY IN FILING SUCH APPEALS SHOULD BE CONDONED. FURTHER, THE HONBLE SUPREME COURT IN THE CASE IF ORIENTAL AROMA CH EMICAL INDUSTRIES LTD VS GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (2010) 5 SCC 459 AND IN R B RAMALINGAM VS R B BHUVANESHWARI (2009) 1 RCR (CIVIL) 892 HAD ANALYZED THE B ROAD PRINCIPLES FOR CONDONATION OF DELAY U/S 5 OF THE LIMITATION ACT, 1963. THE HON BLE COURT OBSERVED AS FOLLOWS: FROM THE ABOVE, IT EMERGES THAT THE LAW OF LIMITATION HAS BEEN ENACTED WHICH IS BASED ON PUBLIC POLICY SO AS TO PRESCRIBE TIME LIMIT FOR AVAILING OF LEGAL REMEDY FOR REDRESSAL OF THE INJURY CAUSED. THE PURPOSE BEHIND ENACTIN G LAW OF LIMITATION IS NOT TO DESTROY THE RIGHTS OF THE PARTIES BUT TO SEE THAT THE UNCERTAINTY SHOULD NOT PREVAIL FOR UNLIMITED PERIOD. UNDER SECTION5 OF THE 1963 ACT, THE COURTS ARE EMPOWERED TO CONDONE THE DELAY WHERE A PARTY APPROACHING THE COURT BELAT EDLY SHOWS SUFFICIENT CAUSE FOR NOT AVAILING OF THE REMEDY WITHIN THE PRESCRIBED PERIOD. THE MEANING TO BE ASSIGNED TO THE EXPRESSION SUFFICIENT CAUSE OCCURRING IN SECTION 5 OF THE 1963 ACT SHOULD BE SUCH SO AS TO DO SUBSTANTIAL JUSTICE BETWEEN THE PARTI ES. THE EXISTENCE OF SUFFICIENT CAUSE DEPENDS UPON ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 5 FACTS OF EACH CASE AND NO HEARD AND FAST RULE CAN BE APPLIED IN DECIDING SUCH CASES. 7.2 FROM THE ABOVE OBSERVATIONS OF THE HONBLE SUP REME COURT, IT CAN BE SEEN THAT, IN A MERITORIOUS CASE, IF THERE IS SOME REASONA BLE CAUSE IN FILING THE APPEALS BELATEDLY , IT SHOULD BE CONDONED. THE EXISTENCE OF REASONABLE CAUSE DEPENDS UPON FACTS OF EACH CASE AND NO HARD AND FAST RULE CAN BE APPLIED. IN THE INSTANT CASE, THE DELAY IN FILING THE APPEAL IS ONLY 30 DAYS. THE DELAY OCCURRED MAINLY DUE TO THE REASON THAT RELEVANT PROVISIONS WAS INTRODUCED DURING THE CURRENT ASSESSMENT YEAR AND THERE WAS CONFUSION AS REGARD APPEALABILITY OF THE ORDER U/S 234E. I N THE LIGHT OF THE ABOVE STATED FACTS AND THE REASON S, WE ARE OF THE VIEW THAT THE CIT (A) IS NOT JUSTIFIED IN DISMISSING THE APPEALS IN LIMINE , WITHOUT GOING INTO THE ISSUE ON MERITS. THEREFORE, W E CONDONE THE DELAY OF 30 DAYS IN FILING THE SE APPEALS BEFORE THE CIT(A) AND DIRECTED THE CIT(A) TO CONSIDER T HE ISSUE ON MERITS. IT IS ORDERED ACCORDINGLY. 8 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JUNE 2016. SD/ - SD/ - ( B P JAIN) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 2 ND JUNE 2016 RAJ* ITA NOS. 73/COCH/2016 & ITA NOS 237 TO 239/COCH/2016 ) 6 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT, 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN