M/s. NALCO Mines Employees Union, Koraput V. Pr.CIT-1, Sambalpur

ITA 26/CTK/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5664 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 29-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BASUDEV PANDA
• Keywords: Rule of consistency; Competent authority; Condonation of delay; Revised return; TDS; Set aside
• Section: 201(1); 119

Judgement Text

P a g e1 | 20 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER ITA No.26/CTK/2 021 Assessment Years: 2012-13 to 2017-18 Shri Pramod Kumar Moharana, President of NALCO Mines Employees‟ Union, At: D-9, Sector-1, NALCO Township, Damanjodi,Dist: Koraput Vs. Pr. CIT-1, Bhubaneswar. PAN/GIR No.ACLPM 0589 M (Appellant) .. ( Respondent) Assessee by : Shri Basudev Panda, Sr. Advocate Revenue by : Shri S.C.Mohanty Addl. CIT (DR) Date of Hearing : 27 /10/ 2021 Date of Pronouncement : 23/12/2021 O R D E R Per Bench This is an appeal filed by the assessee against the order u/s.119(2)(b) of the Income tax Act, 1961 of the Pr. CIT(A)-1, Bhubaneswar for the assessment years 2012-13 to 2017-18. Application of applicant/assessee for condonation of delay :- 2. Ld. Senior Counsel on application dated 28.03.2021 submitted that the Hon‟ble High Court of Orissa was pleased to direct to file appeal before the Tribunal for adjudication and the matter was disposed of vide W.P.(C) No.24445/2020, dated 05.01.2021 and I.A.No.250/2021 vide dated 17.03.2021 for consideration of explanation of assessee for the delay in I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e2 | 20 filing appeal on account of pendency of petition before the Hon‟ble High Court. Ld. Senior Counsel also drew our attention towards order of Hon‟ble Supreme Court in suo motu Writ Petition (Civil) No.03/2020, dated 08.03.2021, wherein the Government of India was directed to amend the guidelines for containment zones, to state and also directed that regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including legal purposes, and educational and job-related requirements. 3. Ld. Sr. DR, in all fairness, submitted that in view of the order of Hon‟ble jurisdictional High Court, did not refute the submissions of the ld. AR of the assessee pertaining to issue of condonation of delay in filing the appeal before the Tribunal. 4. On careful consideration of the above submissions and respectfully keeping in view of the order of the Hon‟ble jurisdictional High Court dated 17.03.2021 passed in I.A.No.250 of 2021, delay in filing the appeal before the Tribunal is condoned. 5. The assessee has taken the following grounds of appeal: “ A. For that the exparte order of the Id. Principal Commissioner of Income Tax, Bhubaneswar-1 vide dated 15.07.2020 illegally made from the Assessment Year 2012-13 to 2017-18 and passed without consideration of grant of opportunity and made exparte order u/s.H9(2b) of the IT .Act in respect of the Assessee Appellant about 130 employees filed presenting their returns claiming refund of TDS from the earlier Assessment Year were illegally stepped down by refusing to carry out earlier order of the HAT as well as the Hon'ble High Court even the Appeal order of the Respondent department got dismissed. I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e3 | 20 B. For that thus needs to be carried out in favour of the Appellant the Respondent got represented by the Principal Commissioner of Income Tax, Bhubaneswar-1 failed consider the condonation of delay u/s.H9(2b) and refused without the authority of law and rejected the refund due on flimsy and fabricated grounds, therefore the order passed has to be quashed and vacated. C. For that the Id. Principal Commissioner of Income Tax, Bhubaneswar-1 should be directed the Appellant for his physical presence atleast to defend his own order passed explaining the Comments made stating against the order of the Hon'ble Court as well as the Hon'ble Tribunal made earlier were nothing to be entertained by them and the erratic views of the Respondent made have to be quashed on payment cost to the Appellant and the Employees of the Union. D. For that the exparte order passed by the Id. Principal Commissioner of Income Tax-1, Bhubaneswar was beyond his jurisdiction because of given no chance of confrontation and no reply was received in response to the phone of the Appellant as well as request petition filed from time to time seeking refunds by Appellant in the matter. Therefore the illegality committed has to be decided in favour of the Appellant. E. For that the revised returns filed on the basis of the direction of the Hon'ble High Court by the Assessee Employees about 130 persons from the AY 2012-13 to 2017-18 should have been considered and accepted in pursuance to the CBDT Circular No.9/2015 dated 09.06.2015 and guidelines provided for obtaining the belated returns where the refunds are due and in such case refusal to entertain the matter without issue of confrontation is completely an abuse of power and disobeyed the guideline of the CBDT therefore the exparte order is liable to be quashed. F. For that the order of Hon'ble High Court of Orissa passed dated 31.07.2019 with specific direction by the Hon'ble Court at para-3 of the order made stating interalia that the decision of the Id. Income Tax Appellant Tribunal, Cuttack Bench, Cuttack the authorities (NALCO) who has raised collection on the TDS are bound by the decision in ITA No.32/2012. Therefore the clear direction of the Hon'ble High Court since was not carried out by the Opp.Party the Respondent specifically the Respondent No.3, the Principal Commissioner of Income Tax-1, Bhubaneswar should face the disciplinary action and harassment and other proceedings as available under the law and for such delay in the refund dues in respect of the parties concerns are to be specifically sanctioned and paid with interest. The copy of .the order u/s. 119 2(b) and order of the Hon'ble High Court dated 31.07.2019 list of assesses along with order of this Hon'ble Bench dated 20.01.2012 are separately furnished and filed for consideration and for grant of refund. I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e4 | 20 G. For that once the Hon'ble High Court of Orissa categorically stated that the order of the Tribunal as well as decision passed in ITA No.32/2012 along with the Writ Petitions of the Appellant were to be considered specifically directing to consider the grievance of the Appellant empathically stated (giving direction to bound to consider) should have been accepted unconditionally in the grant of refund claims otherwise by misinterpreting the issues and raising further objections prior to acceptance of the condition in the relevant period are beyond to the statutory limit and power of the Principal Commissioner of Income Tax, the respondent. H. For that the Hon'ble High Court have passed the order dated 05.01.2021 in WP(C) No.24445/2020 subsequently in I.A No.250/2021 having clarified the position directing to file Appeal before this Hon'ble Forum with petition for consideration of condonation of delay and separately furnished to be allowed in toto. I. For that the issue regarding population of the particular place since was already considered by competent authorities were accepted by the Hon'ble Tribunal as well as the Hon'ble Court and further scrutiny and review of the matter is beyond of the jurisdiction and competency of the Respondent department. Therefore the order of the Hon'ble Court passed is binding and is to be strictly followed law for harassing the Appellant. J. For that the Form 12BA issued previously without deduction of perquisite in the remote area given to the employees working in the Bauxite mines and Form-30 filed seeking refund of the amount since were not disputed the Respondents have no authority to sit over the order of the Hon'ble Tribunal as well as the Hon'ble High Court. The copies of the Certificates and correspondence repeatedly made filed for consideration and non- furnishing of reply and objection and subsequently refused to grant refund is nothing but abuse of power. The copies of which are separately furnished. K. For that the Forum below had no right to sit over the order of the Hon'ble Court and prior to Hon'ble Tribunal since issues have already settled and left no Grounds available to dispute the matter once having accepted the perquisite deducted in pursuance of Section 17(2) and rule 3 of the statute. Accordingly the order of the Id. Pr. CIT is liable to be quashed and vacated.” 6. The facts leading to the present appeal in nutshell are as under: i) The appellant is representing the Employees of the Mines as the President of the Union. The Assessing officer having TDS jurisdiction over TAN of NALCO-DDO had passed an order u/s.201(1) and I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e5 | 20 201(1A) of the Income tax Act, 1961 on 27.5.2009 for the financial year 2007-08 relevant to assessment year 2008-09 directing deduction of tax on perquisites for provision of concessional residential accommodation by the employer NALCO to its employees working in Panchapatmali Bauxite Mines Area. This order was reversed by the ITAT and further appeal by the revenue was also dismissed by the Hon‟ble Jurisdictional High Court. ii) The question had cropped up stating whether the employees of NALCO working in the mining area i.e., 486 out of 7000 employees in the Bauxite Mines had occupied the sheds provided by the NALCO establishment only having 800 sq.ft within 40km away from the Municipality. iii) Sunabeda a town was in NAC conducted subsequently to the establishment of Municipality wherein Damanjodi has been declared as 'remote area' which had justified not to initiate proceedings u/s.201(l) and 201(1 A) denying to deposit TDS. iv) A certificate was obtained from the Executive officer of NAC, Sunabeda by the appellant, the copy of which has been filed in the paper book. The latest Indian census 2011 provided population Ward No.1 to 8 and Ward No.17 to 23 was 36,015. But total population of the NAC, Sunabeda was 50,302 and 36,000 coming under villages I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e6 | 20 and town had only 14,287 within the limit of 20,000 as mentioned. The floating population was not to be included. v) The Tribunal in its order dated 20.1.2012 in the appeal filed by the NALCO in ITA Nos.46 & 47/CTK/2010 and 175/CTK/2011 for assessment year 2007-08, inter alia, held that Damonjodi is a remote area and has not to be considered for the purpose of computing the township nearest to it less than 40 kms away and set aside the order of the ld CIT(A) and cancel demand so raised u/s.201(1) and 201(1A) of the Act. vi) Accordingly, the appellant filed Writ Petition (C) No.21419/2014 and the Hon‟ble High Court vide its order dated 31.7.2019 relying on the order of the ITAT dated 20.1.2012 held that NALCO is bound to consider the grievance of the appellant in terms of the decision of the Tribunal as well as the decision of this Court. vii) From the Financial Year 2004-05 to 2010-11 corresponding to assessment Years 2005-06 to 2011-12, the demand was made but subsequently accommodation provided made deduction of tax at source on perquisites paid to employees working in mines area. ix) The employees of the NALCO working at Mines area followed the Circular No.9/2015 dated 09.06.2015 of the CBDT claimed refund of the perquisite deducted. I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e7 | 20 x) On the basis of the order of the Hon'ble High Court, the perquisite suffered deduction of tax, claimed refund from the Assessment Year 2012-13 to 2017-18 by the employees and proceeded to approach the Principal Commissioner of Income Tax, Bhubaneswar to consider the CBDT Circular, who passed the order u/s119(2)(b) exparte without granting any opportunity to the Appellant disputed and Jurisdiction of the order of the Hon'ble High Court and held that there is no merit in the case of petitioners and it was also conveyed through the letter of ITO (Hqrs)(TDS)-II, Bhubaneswar stating accommodation provided to the employees not to deduct TDS on said perquisite was wrong and such view taken by the ITAT previously from the Assessment Year 2007-08 to 2009-10 was not acceptable to "revenue" and the appeal filed u/s.260A before the Hon'ble High Court, Odisha was withdrawn on the basis of monetary limit as prescribed by CBDT. However, it is observed from the judgment dated 31.7.2019 that no appeal was withdrawn and the issue was adjudicated by the Hon'ble High Court xi) The appellant further approached Hon'ble High Court vide WP(C) No.24445 of 2020 challenging the order of the Pr.CIT disputing the jurisdiction of the Hon'ble High Court and Hon'ble Tribunal. I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e8 | 20 xii) Further the matter was again adjudicated by the Hon'ble High Court on 05.01.2021 and subsequently basing on a misc. Case filed vide ITA No.250 of 2021, the Hon'ble Court vide order dated 17.03.2021, directed at para.3 of the order to the Nalco employees (petitioners) to approach the Hon'ble ITAT by filing appeal separately and move for condonation of delay. 7. The revenue sent an email stating that the appeal filed by Shri Pramod Kumar Moharana, as per the PAN of the appellant, belongs to an individual not an organization. Since, the appeal is not filed by NALCO Mines Employees Union, therefore, the order u/s.119(2)(b) is not appealable order. 8. The contention of ld A.R. is that the appeal is filed in view of the direction of the Hon‟ble Jurisdictional High Court order dated 17.3.2021, and Shri Pramod Kumar Moharana has filed the appeal on behalf of the NALCO Employees Union. 9. Ld A.R. of the assessee submitted the claim of refund made of the tax deposited on perquisite should be refunded since the Hon'ble Court directed the NALCO as well as the I.T department to follow the order of the ITAT along with the order of the Hon'ble Court and disposed the Appeal of the Department and passed order separately that the objection of deduction of tax at source is bound to be considered as was held not to be taxable by the Hon'ble Tribunal and no TDS is to be deducted or deposited I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e9 | 20 u/s.201(l)/201(lA) in terms of the decision of the Tribunal as well as the decision of Hon'ble Court which are to be carried by the Income tax Department and clear direction to be made to the Pr.CIT for refund of the amount to be paid once certificate has been examined by the ITAT and thereafter by the Hon'ble Court, particularly in census not exceeded the limit provided under the statute, deduction of the tax to be refunded. 10. Ld A.R. submitted that in view of the decision of Hon‟ble Jurisdictional High Court (supra), in no case the deduction of tax to be retained illegally without authority of law unless the Hon‟ble High Court desired. He also submitted that the order of the Tribunal has been merged with the order of the Hon‟ble High Court, deduction of TDS has not been made NALCO authorities and refund of the current tax in most of the cases have been made unless separate order is made by the Hon'ble Court that the tax is leviable and the matter must be taken in the prospective way and not in retrospective manner. 11. Ld. Senior Counsel, before us, submitted that the ex-parte order of the Id. Principal Commissioner of Income Tax, Bhubaneswar-1 vide dated 15.07.2020 illegally made from the Assessment Year 2012-13 to 2017-18 and passed without consideration of grant of opportunity and made ex- parte order u/s.119(2b) of the IT Act in respect of the assessee about 130 employees filed presenting their returns claiming refund of TDS from the earlier Assessment Year were illegally stepped down by refusing to carry out I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e10 | 20 earlier order of the ITAT as well as the Hon'ble High Court even the Appeal order of the Respondent department got dismissed. It was also contended by the ld. Senior Counsel that the Pr.CIT should have directed the assessee for his physical presence at least to defend his own order passed explaining the comments made stating against the order of the Hon'ble Court as well as the Hon'ble Tribunal made earlier were nothing to be entertained by them and the erratic views of the department made have to be quashed on payment cost to the Appellant and the Employees of the Union. Further the ld. Senior Counsel submitted that the ex parte order passed by the Pr.CIT was beyond his jurisdiction because of given no chance of confrontation and no reply was received in response to the phone of the assessee as well as request petition filed from time to time seeking refunds by Appellant in the matter. Therefore the illegality committed has to be decided in favour of the assessee. The ld.Senior Counsel also submitted that the revised returns filed on the basis of the direction of the Hon'ble High Court by the Assessee Employees about 130 persons from the AY 2012-13 to 2017-18 should have been considered and accepted in pursuance to the CBDT Circular No.9/2015 dated 09.06.2015 and guidelines provided for obtaining the belated returns where the refunds are due and in such case refusal to entertain the matter without issue of confrontation is completely an abuse of power and disobeyed the guideline of the CBDT therefore the ex-parte order is liable to be quashed. It was also submitted by the ld. Senior Counsel that the order I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e11 | 20 of Hon'ble High Court of Orissa passed dated 31.07.2019 with specific direction by the Hon'ble Court at para-3 of the order made stating interalia that the decision of the Id. Income Tax Appellant Tribunal, Cuttack Bench, Cuttack the authorities (NALCO) who has raised collection on the TDS are bound by the decision in ITA No.32/2012. Therefore the clear direction of the Hon'ble High Court since was not carried out by the department, specifically the ld. Pr.CIT should be directed to comply with the judgment of Hon‟ble High Court of Orissa dated 31.07.2019(supra) and pass an order of refund to the all beneficiaries members of assessee-union with interest as allowable under the Act and rules made thereunder. 12. Further the ld. Senior Counsel drawing our attention to the decision of the Hon‟ble jurisdictional High Court passed in ITA No.32/2012 submitted that once the Hon'ble High Court of Orissa categorically stated that the order of the Tribunal as well as decision passed in ITA No.32/2012 along with the Writ Petitions of the assessee were to be considered specifically directing to consider the grievance of the assessee empathically stated (giving direction to bound to consider) should have been accepted unconditionally in the grant of refund claims otherwise by misinterpreting the issues and raising further objections prior to acceptance of the condition in the relevant period are beyond to the statutory limit and power of the ld. Principal Commissioner of Income Tax, the respondent. Drawing our attention to the order passed by the Hon‟ble jurisdictional High Court in I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e12 | 20 WP(C) No.24445/2020 and in I.A.No.250/2021, copies of which are placed in the paper book at pages 19-24, ld. Senior Counsel submitted that the Hon‟ble jurisdictional High Court has clarified the position directing to file Appeal before this Hon'ble Forum with petition for consideration of condonation of delay and separately furnished to be allowed in toto. 13. Accordingly, ld. Senior Counsel submitted that the issue regarding population of the particular place since was already considered by competent authorities were accepted by the Hon'ble Tribunal as well as the Hon'ble Court and further scrutiny and review of the matter is beyond of the jurisdiction and competency of the Respondent department. Therefore the order of the Hon'ble Court passed is binding and is to be strictly followed law for harassing the assessee. It was also contended by the ld. Senior Counsel that the Form 12BA issued previously without deduction of perquisite in the remote area given to the employees working in the Bauxite mines and Form-30 filed seeking refund of the amount since were not disputed the Respondents have no authority to sit over the order of the Hon'ble Tribunal as well as the Hon'ble High Court. The copies of the Certificates and correspondence repeatedly made filed for consideration and non-furnishing of reply and objection and subsequently refused to grant refund is nothing but abuse of power. The copies of which are separately furnished. The ld. Senior Counsel also submitted that the Forum below had no right to sit over the order of the Hon'ble High Court of Orissa and prior I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e13 | 20 to Hon'ble Tribunal since issues have already settled and left no Grounds available to dispute the matter once having accepted the perquisite deducted in pursuance of Section 17(2) and rule 3 of the statute. Accordingly the order of the Id. Pr. CIT is liable to be quashed and vacated. 14. Lastly, the ld. Senior Counsel submitted that keeping in view the copy of the order u/s.119(2)(b) of the Act, the Pr.CIT-1, Bhubaneswar dated 15.07.2020, which is clearly discernible that the revenue authorities are not inclined to follow and comply with the judgment of Hon‟ble High Court of Orissa dated 31.07.2019 (supra) and the order of ITAT Cuttack Bench in ITA Nos.46&47/CTK/2010 & 175/CTK/2011, dated 20.01.2012 for A.Y.2007-2008 having similar and identical facts and circumstances. Ld. Senior Counsel submitted that it is a grave omission and mistake on the part of the revenue authorities including the ld. Pr.CIT that the orders of the Tribunal and Hon‟ble High Court of Orissa are not being respected and followed as per directions given by the Hon‟ble High Court in the judgment dated 31.07.2019 (supra) in assessee‟s own case in the similar issue for preceding assessment years. Ld. Senior Counsel also drew our attention towards page No.10 of the impugned order of Pr.CIT and submitted that although the assessee brought the order of ITAT Cuttack Bench dated 20.01.2012 (supra) to the knowledge of the Pr.CIT but he did not appreciate the same in right perspective. Ld. Senior Counsel further drew our attention towards para 4.2 of the impugned order and submitted that I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e14 | 20 the Pr.CIT noted that relying on some decisions/orders of the Tribunal for A.Y.2007-2008, the assessee requested to consider the revised return for A.Y.2012-2013 to 2017-2018 and, therefore, the Pr.CIT may kindly be directed to follow and comply with the order of ITAT Cuttack Bench dated 20.01.2012 (supra) and judgment of Hon‟ble High Court of Orissa dated 31.07.2019 (supra), by which is the departmental appeal against the order of the Tribunal dated 20.01.2012 (supra) have been dismissed by Hon‟ble High Court directing that the revenue authorities are duty bound to consider the grievance of the assessee in terms of decision of Tribunal and Hon‟ble High Court of Orissa, while considering the grievance of the assessee. Ld. Senior Counsel also drew our attention to paras 3 & 4 of the judgment of Hon‟ble High Court, which are as follows :- 3. Learned Tribunal while adjudicating the appeal held as follows: "6. We have heard the rival submissions of both the parties and perused the material available to the Tribunal. Considering the facts and circumstances of the case, we are inclined to find favour in the contention of the learned Counsel for the assessee simply because he has' relied on the Government Notification along with the area which is supported by the documented map of the HAL area. The Assessing Officer in his contention has held that the population is 17,000 and therefore, he has to choose a town which is within 40 KMs thereof. It was not a choice to be made by the employees of the assessee when the interpretation of law has been misconstrued to choose a remote area specially for mining when the assesses are required to set up near the mines for carrying out the work of the assessee by giving concessional accommodation In their. own township. Perquisites as per Rule 3 indicated the reason for considering the remote area as located at least 40 KMs away from a town having a population not exceeding 20,000 based on latest polished All India Census. The word "town" has to be defined and understood on its literal sense which alienates the employees not to be taxed on the perquisite value for the residential I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e15 | 20 accommodation provided by the assessee. The authorities below misdirected themselves to hold that a cluster of separate villages considered as NAC were mouzas which could not be given effect to a place being a town as inscribed In the Rules with floating population and the population of the township Itself when another Government Undertaking is functioning In that area. It was the case when employees were not to be subjected to tax on the purported perquisite value of the accommodation provided to them as per the terms of the employment contract. The learned Counsel for the assesee before us Indicated all the possible avenues available for taxation when the bone of contention is whether the employees were really taking advantage of working in the mining area could be said to' be enjoying the benefits of having the accommodation in town nearest which can be considered for the purpose of confining to the remote area at least being 40 KMs (as the crow flies) away from the residence. The assessing authorities therefore held that it being only 17 KMs was hot to consider whether the assessee had defaulted in computing the perquisite value when the salary paid to the employees was subjected to deduction by way of standard concessional rate in respect of different employees In accordance with the provisions of the employment contract. It was not the case of the Assessing Officer to choose a particular town which was to be beyond 40 KMs from the place where the employees resided. The NAC therefore clearly indicates that they are not functioning for the purpose of holding these areas as a town by itself. The term "town" in the Act is not the same as territory which demolishes the Assessing Officer's considering the employees ought to be taxed on the perquisite value of the accommodation insofar as the mines and refinery division of NALCO is located as Damanjodi in Koraput District of Orissa. NALCO had more than 7000 employees out of which only 486 employees were working at mines site about 21 I(Ms away from Damanjodi residential area on hills frequented by wild animals and also by extremists like Maoists. NALCO has provided accommodation at Damanjodl to such employees working at Mining sites. Proviso to Rule 13(1) w.e.f. 1.10.2004 specifies that no perquisites shall be considered in respect of accommodation provided to an employee working at a mining site or an onshore oil exploration site or a project execution site or a dam site or a power generation site or an offshore site- (i) which, being a temporary nature and having plinth area not acceding 800 Sq.ft is located not less than 8 KMs away from the local limits of any municipality or a cantonment board; of (ii) which is located in a remote area. Remote area for the purposes of above proviso to the sub-rule means an area that is located at least 40 KMs away from town having a population not exceeding 20,000 based on latest published All India Census. The question of concessional I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e16 | 20 perquisites in respect of NALCO mining site employees is dependent on interpretation of "remote area" which in turn is based on interpretation of "Town". The word "Town" is not defined in Income-tax Act, 1961. The word 'town" in the absence of any definition in the Act has to be understood In the sense in which ordinarily people understand It that it is a place having the main attributes of the existence of houses in clear proximity, concentration of a large number of people in a comparatively small area and engagement of the bulk of the population in non- agricultural pursuits (see. Belait Sheikh v. State of West Bengal reported in AIR 1952 Cal 733755 (Bengal Municipal Act 5, 6). Town is anassernblage of buildings, public or private, larger than a village and having more complete and independent local Government. A village and a town are not identical. A village is ordinarily less than a town and more occupied by agriculturist; the size of the place or employment of the Inhabitants is also an important fact to be considered which is Sunabeda case Is a territory comprising of many villages for revenue purpose and HAL townshlp under Central Defence Authorities. Directorate of Town Planning, Govt. of Orissa in page 31 of the Paper Book has stated Sunabeda town Is having a vast area with 21 revenue mouzas. Actual development spread over seven villages sporadically. The rest of the villages are completely rural in character. The HAL Township is completely pucca in structural condition with double storied buildings, as thE;/same is being managed by Central Defence Authorities. Therefore, in our considered view keeping in view the totality of the facts and Circumstances, we are inclined to hold that the consideration of the Damanjodi not as remote area was contrary to the findings as acceptable to the authorities below earlier cannot now be questioned for Invoking Sections 201(1) and 201(lA) which. have been confirmed by the learned' CIT{A) on the basis of his giving a finding that the discontinuance of deduction was based on a wrong footing as was being followed by the assessee for the earlier two financial years. Damanjodi is a remote area and has/not to be considered for the purpose of computing the township nearest to it less than 40KMs away. It is not the case of the Assessing Officer to declare a particular place as town when the nature of accommodation provided by 'the assessee does', not relate to the perquisite value enjoyed by its inhabitants in accordance with the normal residence in a town duly acknowledged as such by the Government authorities. For the reasons as stated above, we set aside the orders of the learned CIT(A) and cancel the demand so raised u/s. 201(1) and 201(1A) and allow the appeals of the assessee. 7. In the result, the appeals of the. assessee are allowed." I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e17 | 20 3. In view of the decision of the learned Income Tax Appellate Tribunal, Cuttack Bench, Cuttack, the authority (NALCO) which has raised objection on the TDS of the assessees, is bound to consider the grievance of the petitioners in terms of the decision of the Tribunal as well as the decision of this Court. The appeal is disposed of accordingly. Urgent certified copy of this order be granted as per Rules. 15. The ld. Senior Counsel submitted that grievance and grounds of appeal may kindly be allowed or alternatively, appropriate directions be issued to ld. Pr.CIT to reconsider the prayer of assessee in the interest of justice. 16. Replying to the above, ld.Sr. DR, first of all, submitted by way of written submissions dated 11.10.2021, that the order u/s.119(2)(b) of the Act is not an appealable order before the Tribunal. 17. Ld. Senior Counsel requested to assist the court under which provision appeal against the order passed by the Pr.CIT u/s.119(2)(b) of the Act is maintainable before the Tribunal but he could not show any provision of the Act or any rules made thereunder. Therefore, we are compelled to hold that the appeal filed by the assessee against the order u/s.119(2)(b) of the Act dated 15.07.2020 is not maintainable before the Tribunal. 18. During the course of arguments, ld. Senior Counsel of the assessee also drew our attention towards sub-section (1) to Section 254 of the Income Tax Act, 1961 (in short the „Act‟) and submitted that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit in the interest of I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e18 | 20 justice. Therefore, while disposing off the appeal the Tribunal should direct the authorities below to comply with its earlier order passed for preceding years on the identical issue having similar facts and circumstances of the case and the judgment of the Hon‟ble High Court of Orissa dated 31.07.2019 following the rule of consistency and rendered by the Hon‟ble Supreme Court in the case of Radhasoami Satsang Vs. CIT (1992) 193 ITR 321 (SC). Ld. Senior DR did not controvert or oppose to that the Tribunal may pass or issue directions u/s.254(1) of the Act as it thinks fit in the interest of justice while disposing off the appeal. 19. On careful & vigilant consideration of above submission of both the sides, first of all, we are conscious and cautious about the legal position that the powers of the Tribunal are limited and we should pass orders and can issue directions within the limit of our powers provided under the Act and Rules but at the same time, we are also duty bound to see as to whether the order of the Hon‟ble Jurisdictional High Court of Orissa 31.7.2019 (supra) and the order of the Tribunal dated 20.01.2012 (supra) on identical issue partaking to assessee‟s own appeals for earlier assessment years are being complied and properly followed by the revenue authorities. In the present case, the Pr.CIT having aid of non-applicability of principle of res judicata and by considering irrelevant facts has kept aside the order of the Tribunal and the order of the Hon‟ble High Court in assessee‟s own case on identical issue and passed ex-parte order qua I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e19 | 20 assessee, which is not a reasonable and justified approach. He has completely ignored the rule of consistency, which is followed by the Tribunal and all revenue authorities below in view of the judgment of Hon‟ble Supreme Court in the case of Radhasoami Satsang (supra). Thus, without commenting on the merits of the contentions of the assessee and exercising the limited power provided by the statute under sub-section (1) of Section 254 of the Act, as agreed by the ld. representative of both the sides, we direct that the assessee is at liberty to file a review petition/representation before the ld. Pr.CIT and the same should be adjudicated by the Pr.CIT keeping in view the Judgements of Hon‟ble Supreme Court in the case of Radhasoami Satsang (supra) and Hon‟ble Orissa High Court dated 31.07.2019 (supra) and the order of the Tribunal dated 20.01.2012 (supra) and all related provisions of the Act and rules made thereunder by passing a well reasoned corrigendum order. 20. In the result, appeal of the assessee is disposed off with the directions to the competent authority –ld. Pr.CIT, as given hereinabove. Order pronounced u/s. 34(4) of I.T.A.T.Rules, 1963 on 23/12/2021. Sd/- Sd/- (Manish Borad) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 23/12/2021 B.K.Parida, SPS (OS)/PKM, Sr.PS Copy of the Order forwarded to : 1. The Appellant : Shri Pramod Kumar Moharana, President of NALCO Mines Employees‟ Union, At: D-9, Sector-1, NALCO Township, Damanjodi, Dist: Koraput I T A N o . 2 6 / C T K / 2 0 2 1 A s s e s s m e n t Y e a r s : 2 0 1 2-1 3 t o 2 0 1 7-18 P a g e20 | 20 By order Sr.Pvt.secretary ITAT, Cuttack 2. The Respondent. Pr. CIT-1, Bhubaneswar 3. DR, ITAT, Cuttack 4. Guard file. //True Copy//