M/s. Rao & Venkatesulu, Bangalore V. Income Tax Officer, Ward- 2(3)(2), Bangalore

ITA 305/BANG/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5438 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 30-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NINGOJI RAO
• Keywords: Rectification of order; Condonation of delay; TDS
• Section: 154; 143(1); 205; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE SMC-A BENCH, BANGALORE BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.305/BANG/2021 : ASST.YEAR 2016-2017 M/S.RAO & VENKATESULU CHARTERED ACCOUNTANTS NO.200, 3 RD D CROSS II BLOCK III STAGE, BASAVESHWARANAGAR BENGALURU 560 079. PAN : AABFR0269F. V. THE INCOME TAX OFFICER WARD 2(3)(2) BENGALURU. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.NINGOJI RAO, CA RESPONDENT BY : SRI.GANESH R.GHALE, STANDING COUNSEL DATE OF HEARING : 21.09.2021 DATE OF PRONOUNCEMENT : 22.09.2021 O R D E R THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST THE CIT(A)S ORDER DATED 29.08.2018. THE RELEVANT ASSESSMENT YEAR IS 2016-2017. 2. THERE IS A DELAY OF 448 DAYS IN FILING THIS APPEAL. THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY AND ALSO AN AFFIDAVIT OF THE MANAGING PARTNER OF THE ASSESSEE STATING THERE THE REASONS FOR BELATED FILING OF THIS APPEAL. THE REASONS STATED IN THE AFFIDAVIT IS THAT THE ASSESSEE-FIRM FOR IDENTICAL RELIEF CLAIMED IN THIS APPEAL HAD ALSO FILED A RECTIFICATION BEFORE THE CIT(A) ON 05.10.2018 (THIS IS WITHIN 32 DAYS FROM THE CIT(A) ORDER DATED 29.08.2018) HOPING TO GET RELIEF FROM THE FIRST APPELLATE AUTHORITY AND SINCE THE CIT(A) DID NOT DISPOSE OF THE RECTIFICATION APPLICATION, THIS APPEAL WAS FILED ITA NO.305/BANG/2021. M/S.RAO & VENKATESULU. 2 BELATEDLY. IT WAS SUBMITTED THAT THE CONTINUED LOCKDOWN DUE TO COVID-19 PANDEMIC ALSO CONTRIBUTED TO THE FILING OF THIS APPEAL BELATEDLY. 2.1 THE LEARNED STANDING COUNSEL SUBMITTED THAT WHEN THE ASSESSEE HAS PURSUING A REMEDY BY FILING AN APPLICATION U/S 154 OF THE I.T.ACT, IT OUGHT TO HAVE AWAITED THE OUTCOME OF THE SAME AND NOT FILE AN APPEAL BEFORE THE ITAT. 2.2 I HAVE HEARD RIVAL SUBMISSIONS. THE PRAYER IN RECTIFICATION APPLICATION AND IN THIS APPEAL IS IDENTICAL. A COPY OF THE RECTIFICATION APPLICATION IS PLACED ON RECORD. THE RECTIFICATION APPLICATION WAS FILED WITHIN 32 DAYS FROM THE DATE OF THE CIT(A)S ORDER (WAS FILED WITHIN THE DUE DATE SPECIFIED). SINCE THE FIRST APPELLATE AUTHORITY DID NOT ADJUDICATE THE RECTIFICATION APPLICATION WITHIN A REASONABLE PERIOD, THE ASSESSEE WAS FORCED TO FILE THIS APPEAL. THE APPEAL FILED BEFORE THE ITAT BELATEDLY WAS ONLY ON ACCOUNT OF THE ASSESSEE-FIRM WAS HOPING TO GET RELIEF FROM THE FIRST APPELLATE AUTHORITY ON ITS SEC.154 APPLICATION AND THE LOCKDOWN DUE TO COVID-19 PANDEMIC. THE DELAY CANNOT BE ATTRIBUTED TO ANY LATCHES ON THE PART OF THE ASSESSEE AND THERE IS `SUFFICIENT CAUSE FOR FILING THIS APPEAL BELATEDLY. THEREFORE, THE DELAY IS CONDONED AND I PROCEED TO DISPOSE OF THE APPEAL ON MERITS. 3. THE BRIEF FACTS OF THE CASE ARE AS FOLLOW: THE ASSESSEE IS A FIRM. FOR THE ASSESSMENT YEAR 2016- 2017, THE RETURN OF INCOME WAS FILED ON 07.09.2016 DECLARING TOTAL INCOME OF RS.9,57,380 AND CLAIMED THE CREDIT FOR TDS OF ITA NO.305/BANG/2021. M/S.RAO & VENKATESULU. 3 RS.2,94,512. THE RETURN OF INCOME WAS PROCESSED BY THE CPC BY ISSUANCE OF INTIMATION U/S 143(1) OF THE I.T.ACT (INTIMATION DATED 19.06.2017). IN THE INTIMATION ISSUED U/S 143(1) OF THE I.T.ACT, THE ASSESSEE WAS GIVEN CREDIT FOR TDS FOR ONLY A SUM OF RS.1,11,864 (AS AGAINST THE CLAIM OF RS.2,94,512). THE ASSESSEE SOUGHT FOR RECTIFICATION OF THE SAID INTIMATION, WHICH WAS DISPOSED OF BY THE CPC VIDE ORDER DATED 19.10.2017 GIVING CREDIT FOR TDS OF RS.1,52,224 ONLY. 4. AGGRIEVED BY THE RECTIFICATION ORDER PASSED U/S 154 OF THE I.T.ACT (ORDER DATED 19.10.2017), THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) VIDE HIS ORDER DATED 29.08.2018 DIRECTED THE A.O. TO GIVE FURTHER CREDIT OF RS.99,834 BASED ON THE TDS APPEARING IN FORM NO.AS-26 AND HELD THAT THE ASSESSING OFFICER HAS REPORTED TDS CANNOT BE GIVEN FOR OTHER AMOUNTS. AS AGAINST THE ORDER OF THE CIT(A) DATED 29.08.2018, THE ASSESSEE FILED A RECTIFICATION APPLICATION U/S 154 OF THE I.T.ACT ON 05.10.2018. SINCE THE RECTIFICATION APPLICATION DATED 05.10.2018 WAS NOT DISPOSED OF BY THE CIT(A), THE ASSESSEE FILED AN APPEAL TO THE ITAT. 5. THE LEARNED AR HAS FILED A PAPER BOOK COMPRISING OF 132 PAGES ENCLOSING THEREIN THE CASE LAWS RELIED ON, THE WRITTEN SUBMISSIONS FILED BEFORE THE INCOME TAX AUTHORITIES, AUDITED ANNUAL STATEMENT FOR THE YEAR ENDING 31.03.2016, COMPUTATION OF INCOME, PARTY-WISE STATEMENT OF TDS MADE FROM PAYMENTS RECEIVED DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2016-2017, THE AS-26 FOR ASSESSMENT YEARS 2013-2014 TO 2016-2017, ETC. THE LEARNED AR SUBMITTED THAT ITA NO.305/BANG/2021. M/S.RAO & VENKATESULU. 4 THE ASSESSEE IS ENTITLED TO THE BENEFIT OF TDS CREDIT IN RESPECT OF INCOME DISCLOSED IN THE CURRENT ASSESSMENT YEAR IN LIGHT OF THE PROVISIONS OF SECTION 199 R.W.S. 205 OF THE I.T.ACT. IN THIS CONTEXT, THE LEARNED AR RELIED ON THE FOLLOWING CASE LAWS:- (I) SMT.ANUSUYA ALVA V. DCIT REPORTED IN 278 ITR 206 (KAR.). (II) YASHPAL SAHNI V. ACIT &* ORS. [2007) 293 ITR 539 (BOM.) (III) ACIT & ORS. V. OM PRAKASH GATTANI [2000] 242 ITR 638 (GAU). (IV) CIT V. RANOLI INVESTMENT P. LTD. & ORS. [1999] 235 ITR 433 (GUJ.) (V) CAPT.J.G.JOSEPH V. JCIT 303 ITR (A.T.) 395 [ITAT, MUMBAI]. 5.1 IT WAS FURTHER SUBMITTED BY THE LEARNED AR THAT THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE CIT(A)S ORDER HAS NOT STATED HOW THE TDS RELIEF HAS BEEN LIMITED TO RS.2,53,376 INSTEAD OF RS.2,94,511 CLAIMED BY THE ASSESSEE. 5.2 THE LEARNED STANDING COUNSEL SUPPORTED THE ORDER OF THE CIT(A). 6. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PURSUANT TO THE CIT(A)S ORDER, THE A.O. HAS GIVEN EFFECT BY GIVING TDS CREDIT FOR A SUM OF RS.2,53,376 INSTEAD OF RS.2,94,511 CLAIMED BY THE ASSESSEE. THE PRAYER OF THE ASSESSEE IS THAT AS PER THE JUDICIAL PRONOUNCEMENTS RELIED ON (SUPRA), THE ASSESSEE IS ENTITLED TO CREDIT FOR TDS FOR A SUM OF RS.2,94,511 OR 2,78,403 AS THE CASE MAY BE U/S 199 R.W.S. 205 OF THE I.T.ACT. THE ASSESSEE HAS GIVEN A CHART GIVING THE DETAILS OF TDS CREDIT CLAIMED BY THE ASSESSEE FOR THE ITA NO.305/BANG/2021. M/S.RAO & VENKATESULU. 5 ASSESSMENT YEAR 2016-2017. THERE IS NO REASON GIVEN BY THE A.O. IN HIS ORDER GIVING EFFECT OF THE ORDER (ORDER DATED 18.01.2019) WHY THE TDS CREDIT HAS BEEN LIMITED TO RS.2,53,376. IN SUCH CIRCUMSTANCES, I DIRECT THE A.O. TO GRANT THE BENEFIT OF TDS CLAIMED BY THE ASSESSEE IN RESPECT OF INCOME DISCLOSED FOR ASSESSMENT YEAR 2016-2017 IN VIEW OF THE PROVISIONS OF SECTION 199 R.W.S. 205 OF THE I.T.ACT (ALSO REFER TO RULE 37BA(III) OF THE INCOME TAX RULES, 1962. WITH THESE DIRECTIONS, I RESTORE THE ISSUE TO THE FILES OF THE A.O. THE A.O. IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 22 ND DAY OF SEPTEMBER, 2021 . SD/- ( GEORGE GEORGE K ) JUDICIAL MEMBER BANGALORE; DATED : 22 ND SEPTEMBER, 2021. DEVADAS G* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A)-2, BENGALURU 4. THE PR.CIT-2, BENGALURU. 5. THE DR, ITAT, BENGALURU. 6. GUARD FILE. ASST.REGISTRAR/ITAT, BANGALORE