Lakecity Infrastructure Pvt.Ltd., Udaipur V. JCIT, Central Range, Udaipur

ITA 306/JODH/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1928 (ITAT-JODHPUR)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 16-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRISH MEHTA
• Assessee Lawyers: YOGESH CHANDRA POKHARNA
• Keywords: Opportunity of being heard; Condonation of delay; TDS; Set aside
• Section: 234E; 200A; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO. 306 TO 311/JODH/2019 ASSESSMENT YEAR: 2013-14 LAKECITY INFRASTRUCTURE PVT. LTD. VS. JCIT, C/O SATYAMSVG & CO. CENTRAL RANGE CHARTERED ACCOUNTANTS UDAIPUR 15-18, DIAMOND PLAZAA (FIRST FLOOR) OPP CHOUDHARY HOSPITAL, HIRAN MAGRI SECT-5, UDAIPUR PAN NO. AABCL4244P TAN NO. JDHL01564D ITA NO. 312 TO 317/JODH/2019 ASSESSMENT YEAR: 2014-15 LAKECITY INFRASTRUCTURE PVT. LTD. VS. JCIT, C/O SATYAMSVG & CO. CENTRAL RANGE CHARTERED ACCOUNTANTS UDAIPUR 15-18, DIAMOND PLAZAA (FIRST FLOOR) OPP CHOUDHARY HOSPITAL, HIRAN MAGRI SECT-5, UDAIPUR PAN NO. AABCL4244P TAN NO. JDHL01564D ITA NO. 318 TO 323/JODH/2019 ASSESSMENT YEAR: 2015-16 LAKECITY INFRASTRUCTURE PVT. LTD. VS. JCIT, C/O SATYAMSVG & CO. CENTRAL RANGE 2 CHARTERED ACCOUNTANTS UDAIPUR 15-18, DIAMOND PLAZAA (FIRST FLOOR) OPP CHOUDHARY HOSPITAL, HIRAN MAGRI SECT-5, UDAIPUR PAN NO. AABCL4244P TAN NO. JDHL01564D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI YOGESH CHANDRA POKHARNA, CA DEPARTMENT BY: SHRI GIRISH MEHTA JCIT DR DATE OF HEARING : 25/11/2019 DATE OF PRONOUNCEMENT : 25/11/2019 O R D E R PER BENCH : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 27/06/2019 OF THE LD. CIT(A)-2, UDAIPUR. 2. SINCE THE ISSUE INVOLVED IS COMMON IN ALL THESE APPEALS WHICH WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. WE SHALL DEAL WITH APPEAL IN ITA NO. 306/JODH/20 19 FOR THE A.Y. 2013-14 WHEREIN ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. LD. CIT'A' WRONGLY CONFIRMED OF LEVY OF LATE FEE RS. 25500/- UNDER SECTION 234E BY THE LD. DCIT CPC. THE LEVY OF LATE FEE U/S 234E IS WITHOUT FOLLOWING PROVISIONS OF LAW. HENCE THE CONFIRMATION OF LEVY OF LATE FEE IS BAD I N LAW AND BE DELETED. 2. LD. CIT 'A' HAS WRONGLY REFUSED TO CONDONE THE D ELAY IN FILING OF APPEAL, AS THE DELAY IN FILING OF APPEAL IS ON ACCOUNT OF REASONS BEYOND THE CONTROL OF APPELLANT. 3 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER CHARGED LATE FILING FEE UNDER SECTION 234E R.W.S 200A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT), SINCE THERE WAS DELAY IN FIL ING THE TDS STATEMENTS. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE FOR THE REASON THAT THERE WAS DELAY IN FILING THE APPEALS. CONTENTION OF THE ASSESSEE FOR EXPLAINING THE DELAY IN FILING THE APPEALS BEFORE THE LD. CIT(A) WAS AS UNDER: 1. IT IS RESPECTFULLY SUBMITTED THAT AS PER ORIGINAL INTIMATION DATED , THERE IS DELAY IN FILING OF APPEAL, WHICH IS BEYOND CONTROL OF APPELLANT COMPANY. 2. IT IS FURTHER RESPECTFULLY SUBMITTED THAT SHREE D ILIP SHRIMALI WAS DIRECTOR OF THE COMPANY SINCE 2009-10 AND LOOKING AFTER ALL AFF AIRS VERY EFFICIENTLY AND SUDDENLY EXPIRED AT THE AGE OF 48 YEARS DUE TO CARDI AC PROBLEMS. 3. IN SUPPORT OF OUR CONTENTION WE ARE SUBMITTING COPY OF DEATH CERTIFICATE OF SHREE DILIP SHRIMALI, COPY OF FORM D IR 12 SUBMITTED WITH MCA REGARDING HIS DEATH AND AFFIDAVIT OF PRESENT DIRECTOR C ONFIRMING ALL THESE FACTS. 4. IT IS RESPECTFULLY SUBMITTED THAT DELAY IN FILING OF APPEAL WAS ON ACCOUNT OF REASONS BEYOND CONTROL AND ON ACCOUNT OF BONA FIDE GENUINE REASONS. 5. IT IS RESPECTFULLY SUBMITTED THAT FILING OF APPEAL IS SUBSTANTIAL RIGHT AND TIME LIMIT FOR FILING OF APPEAL IS PROCEDURAL AND L AW PROVIDED AMPLE POWER TO YOUR GOODSELF TO CONSIDER EACH CASE OF DELAY ON MERI T AND CONDONE THE DELAY IN THE INTEREST OF JUSTICE.' 5.1 THE LD. CIT(A) HOWEVER DID NOT FIND MERIT IN TH E SUBMISSIONS OF THE ASSESSEE AND DISMISSED THE APPEAL IN LIMINE BY OBSERVING AS UNDER: 2. I HAVE GONE THROUGH THE DOCUMENTS ENCLOSED WITH THE APPLICA TION FOR CONDONATION OF DELAY. DEATH CERTIFICATE OF SH. DILI P SHRIMALI SHOWS HIS DATE OF DEATH AS 14.05.2018. AS SUCH, EVEN AS ON 14.05.20 18, THERE WAS ALREADY EXTRAORDINARY DELAY RANGING FROM 27 MONTHS TO 55 MONTHS , I.E DELAY RANGING FROM MORE THAN TWO YEARS TO NEARLY FOUR AND A HALF YEARS , IN FILING OF THE APPEALS UNDER CONSIDERATION. THUS, THE EVENT OF DEMISE OF SH. DILIP SHRIMALI, THOUGH TRAGIC, DOES NOT IN FACT EXPLAIN THE EXTRAORDINARY DELAY IN FILING OF THE 4 PRESENT APPEALS. 6.1 SUB SECTON (3) OF SECTION 249 DOES ALLOW THE ADMIS SION OF APPEALS FILED WITH DELAY IF THE CIT(A) IS SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN TIME HOWEVER, AS DISCU SSED IN THE PRECEDING PARA, THE ASSESSEE HAS FAILED TO SHOW SUFFIC IENT CAUSE FOR THE EXTRAORDINARY DELAY IN FILING OF THE APPEALS UNDER CON SIDERATION APPLICATION FOR CONDONATION OF DELAY IS ACCORDINGLY REJECTED IN ALL CASES. ACCORDINGLY, ALL THE EIGHTEEN APPEALS UNDER CONSIDERATION ARE DISMISSED AS NOT MAINTAINABLE. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LATE SHRI DILIP SHRIMALI THE THEN DIRECTOR OF THE COMPANY WAS RESPONSIBLE FOR FI LING THE APPEALS AND HE WAS LOOKING AFTER ALL THE TAXATION MATTERS BUT UNFORTUN ATELY HE SUFFERED FROM DENGUE AND ULTIMATELY EXPIRED. IT WAS STATED THAT ALL THES E FACTS WERE BROUGHT TO THE KNOWLEDGE OF THE LD. CIT(A) AND APPLICATIONS WERE M OVED FOR CONDONATION OF DELAY, HOWEVER THOSE WERE NOT CONSIDERED BY THE LD. CIT(A) IN RIGHT PERSPECTIVE. IT WAS SUBMITTED THAT THE DELAY IN FILING THE APPEA LS WAS BEYOND THE CONTROL OF THE ASSESSEE AND THERE WAS NO MALAFIDE INTENTION IN FILING THE APPEALS BELATED. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE WAS INOR DINATE DELAY IN FILING THE APPEALS THEREFORE THE LD. CIT(A) WAS JUSTIFIED IN N OT ADMITTING THE APPEALS BEING BELATED. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL ON RECORD. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE THEN DIRECTOR WHO WAS LOOKING AFTER THE AFFAIRS OF THE ASSESSEE COMPANY EXPIRED UNTIMELY AND THIS FACT THAT HE WAS EARLIER SUFFERING FROM DENGUE WAS NOT BROUGHT TO THE KNOWLEDGE OF THE LD. CIT(A) WHICH WA S FIRST TIME CONTENDED BEFORE THIS BENCH OF THE TRIBUNAL. WE THEREFORE DEE M IT APPROPRIATE TO SET ASIDE 5 THIS CASE BACK TO THE FILE OF THE LD. CIT(A)TO BE D ECIDED AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE EXPLANATION OF THE A SSESSEE FOR DELAY IN FILING THE APPEALS IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/201 9 ) SD/- SD/- (SANDEEP GOSAIN) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 25/11/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR