Gurukrupa Engineering Co., Vadodara V. The Income Tax Officer, Ward-1(3)(1), Vadodara

ITA 282/AHD/2022

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Gurukrupa Engineering Co. appealed against the order of the CIT(A), which had dismissed their earlier appeal concerning the non-allowance of TDS credit by the assessing officer. The assessee argued that due to genuine hardship, including financial losses and operational difficulties, they were unable to file complete details of income and claim the TDS credit within the prescribed time. The Tribunal noted that the assessee failed to approach the Principal Commissioner of Income Tax or Commissioner of Income Tax, who are vested with the powers to accept or reject such applications, and instead approached the Assessing Officer directly. The Tribunal emphasized that the assessee's failure to follow the correct procedural channel was a significant lapse, leading to the dismissal of the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299964 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 18-07-2022
• Other Referred Cases: Union of India vs. Azadi Bachao Andolan (2003) 263 ITR 706, R. Seshammal vs. ITO 237 ITR 185 (Mad.)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay; TDS
• Section: 147; 148; 154; 119(2)(b); 139(1); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER I .T .A . No .2 82 /A h d / 20 22 ( A s se ss m e nt Y e a r : 20 10- 1 1 ) Gu r u kr u p a E n g in e e r in g C o . B / 1, G o ve r d ha n So cie t y, N ea r Ka da m N a g ar , N i za mp ur a , Va do dar a - 39 0 0 19 V s . I T O War d - 1 ( 3) ( 1 ) , V a do da r a [P AN N o.A A CF G6 19 0 K] (Appellant) .. (Respondent) Appellant by : Ms. Rangoli Gada, A.R. Respondent by: Shri Atul Pandey, Sr. D.R. D a t e of H ea r i ng 02.01.2023 D a t e of P r o no u n ce me nt 06.01.2023 O R D E R The appeal filed by the assessee is against the order passed by the Ld. CIT(Appeals), National Faceless Appeal Centre (in short “NFAC”), Delhi on 13.05.2022 for A.Y. 2010-11. 2. The grounds of appeal raised by the assessee are as under: “1. The assessee vide application dated 21/02/2018 has stated that the total credit of TDS amounting to Rs. 5,01,419/- has not been allowed. However the learned assessing officer did not adhere in view of section 239 of the Act. Your Appellant submits that the same is not justified and allow the TDS credit. Your Appellant craves to leave to add to, alter, to amend or to delete any or all the grounds of appeal.” 3. As per AIR information, the assessee received contract receipts of Rs. 2,61,07,550/- and rental income of Rs. 79,100/- during the F.Y. 2009- 10. The Revenue authorities observed that assessee did not file return of income for A.Y. 2010-11. Accordingly, reasons were recorded and noticed under Section 148 of the Act was issued on 23.03.2017 and served to the ITA No. 282/Ahd/2022 Gurukrupa Engineering Co. vs. ITO Asst.Year–2010-11 - 2 - assessee. In response to the notice under Section 147 of the Income Tax Act, the assessee filed return of income on 24.04.2017 declaring total loss of (-) Rs. 2,53,278/-. The Assessing Officer made addition of Rs. 3,07,078/- in respect of expenses. The Assessing Officer thereafter passed order under Section 154 of the Act dated 15.05.2018 thereby observing that the assessee neither filed a return of income under Section 139(1) of the Act nor claim refund therein and hence there is no apparent mistake from the records and application under Section 154 dated 21.02.2018 filed by the assessee was rejected. 4. Being aggrieved by the order under Section 154 of the Act the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. The Ld. A.R. submitted that due to the loss incurred by the assessee the assessee could not file the complete details of income at the relevant time. The Ld. A.R. further submitted that as per Section 119(2)(b) of the Act, the Board may, if it is considers it desirable or expedient so to do for avoiding genuine hardship in any case or class or cases, by general or special order, authorize to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law. Perusing to the above Section, the Board issued Circular No. 9/2015 dated 09.06.2015 wherein the Principal Commissioners of Income Tax/Commissioners of Income Tax shall be vested with the powers of acceptance/rejection of such applications/claims. The Ld. A.R. submitted that on the ground of genuine ITA No. 282/Ahd/2022 Gurukrupa Engineering Co. vs. ITO Asst.Year–2010-11 - 3 - hardship the assessee requested the CIT(A) to condone the delay and allow the claim of TDS credit. The Ld. A.R. further submitted that during the assessment proceedings, the assessee suffered heavy losses and was not able to pay for the loan he had borrowed from bank, as there was liquidity crunch and his accounting staff had left for non-payment of salary etc., therefore, audit was delayed and return was not filed, which shows a genuine hardship. Further the Ld. A.R. submitted that Section 237 shows that the claim for refund has to be made before the Assessing Officer and the present claim the refund has to satisfy the Assessing Officer that the amount of tax paid by him is in excess of the amount which is properly chargeable from him. Sub-Section (1) of Section 239 lays down the manner in which an application for refund has to be made. Sub-Section (2) lays down the time limit within which the claim for refund can be made. In Section 239, no power has been conferred on the Assessing Officer to entertain a claim for refund after the period prescribed thereunder. The Ld. A.R. admitted that the claim for refund was belated claim for refund, the Board neither interferes with the course of assessment of any particular assessee nor with the discretion of the Commissioner (Appeals) which according to the Supreme Court in Union of India vs. Azadi Bachao Andolan (2003) 263 ITR 706 is the only restriction to the powers of the Board under Section 119. The Ld. A.R. relied upon the decision of Hon’ble Madras High Court in case of R. Seshammal vs. ITO 237 ITR 185 (Mad.), wherein the Hon’ble High Court held that Section 237 of the Act does not satisfy that an assessment order must be made and the same amount must be made and the same amount must be found to be payable as taxed and the some amount is excess of that amount should have been paid. It is not a ITA No. 282/Ahd/2022 Gurukrupa Engineering Co. vs. ITO Asst.Year–2010-11 - 4 - pre-condition of invoking that Section that same liability for tax must have been cast upon the person claiming refund. The entire amount paid by the assessee was in excess of the amount seeing actually chargeable and therefore, the assessee was entitled to have been refund to the excess amount as per the Hon’ble Madras High Court’s view. 6. The Ld. D.R. submitted that the judgment is not relevant in respect that here the assessee has not made the application before the appropriate authorities and the assessee has not given the proper details of explanation regarding the delay in approaching the incorrect authority. The Ld. D.R. submitted that Principal Commissioner of Income Tax or Commissioner of Income Tax has the power to decide this matter and the assessee has not filed the proper application before both the authorities. When the remedy lies with the other authorize officer the assessee should have not delayed the matter by filing the appeal before the CIT(A). The Ld. D.R. relied upon the order of the Assessing Officer under Section 154 as well as order of CIT(A). 7. Heard both the parties and perused all the relevant material available on record. The decision of Hon’ble Madras High Court referred by the Ld. Counsel clearly states that the assessee therein claimed the refund and the excess amount and applied to the Board on specified date under Section 119(2)(b), but in the present case the assessee never approach the appropriate authorities instead filed the application before the Assessing Officer and filed the appeal thereafter before the CIT(A). The major defect on the part of the assessee for not approaching the appropriate authorities cannot cure the lapse on the part of assessee and therefore, the CIT(A) was ITA No. 282/Ahd/2022 Gurukrupa Engineering Co. vs. ITO Asst.Year–2010-11 - 5 - right in dismissing the appeal of the assessee. There is no need to interfere with the findings of the CIT(A). The contention of the assessee that the refund should have been given to the assessee does not sustain when the assessee has not availed the appropriate authority which grants the condonation of delay of applying for refund and directing the same. Thus, appeal filed by the assessee is dismissed. 8. In the result, the appeal of the assessee is dismissed. This Order pronounced in Open Court on 06/01/2023 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad; Dated 06/01/2023 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 03.01.2023 2. Date on which the type draft is placed before the Dictating Member 03.01.2023 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 04.01.2023 5. Date on which the fair order is placed before the Dictating Member for pronouncement .01.2023 6. Date on which the fair order comes back to the Sr.P.S./P.S 06.01.2023 7. Date on which the file goes to the Bench Clerk 06.01.2023 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................