M/s Ludwig Pfeiffer Gypsums Structure India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3060/DEL/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6936 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 273B; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D: NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER, AN D SHRI L.P. SAHU, ACCOUNTANT MEMBER , ITA NO. 3060/DEL/2011 [A.YS : 2008-2009] LUDWIG PFEIFFER GYPSUMS STRUCTURE VS. THE D.C.I. T INDIA PVT. LTD CIRCLE - 4(1) 185-A, POCKET B, MAYUR VIHAR II NEW DELHI NEW DELHI PAN : AABCL 2124 L [APPELLANT] [RESP ONDENT] DATE OF HEARING : 15.06.2016 DATE OF PRONOUNCEMENT: 22.07.2016 APPELLANT BY : SHRI AJAY WADHWA, ADV RESPONDENT BY : SHRI YOGESH KUMAR SHARMA , SR. DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS IS A RECALLED ORDER PASSED BY THE TRIBUNAL VID E ORDER DATED 10.1.2014 IN MA NO. 177/DEL/2012 RECALLING TH E ORDER OF THE TRIBUNAL DATED 25.4.2012 IN ITA NO. 3060/DEL/20 11 WHEREIN THE ASSESSEES APPEAL HAD BEEN DISMISSED ON MERITS. 2. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AND D IRECTED AGAINST THE ORDER OF THE CIT(A)-VII, NEW DELHI, DAT ED 15/04/2011 FOR AY 2008-09. 2 ITA NO. 3060/DEL/201 1 2 3. THE EFFECTIVE GROUNDS INVOLVED IN THIS APPEAL RE AD AS UNDER: 1. THE ORDER OF THE LD. CIT(A) DATED 15.4.2011 IS BAD IN LAW AND ON FACTS. 2. THAT ON FACTS AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE AMOUNT OF RS. 58,86,151/- WAS RIGH TLY DISALLOWED U/S 40(A)(IA) OF THE INCOME-TAX ACT, 1961 AS THE TDS MADE THEREON WAS DEPOSITED IN THE GOVERNMENTS ACCO UNT AFTER THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 OF THE INCOME-TAX ACT, 1961, WITHOUT APPRECIATING THE FACT THAT THE DELAY IN DEPOSITING THE TDS OCCURRED DUE TO TEC HNICAL CHANGE IN THE METHOD OF DEPOSITING TDS WHICH WAS BE YOND THE CONTROL OF THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE RELEVANT MATERIAL ON RECORD INTER ALIA THE ASSE SSMENT ORDER OF THE LD. CIT(A), PAPER BOOK FILED BY THE ASSESSEE ALONGW ITH WRITTEN SYNOPSIS SPREAD OVER 10 PAGES. 5. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOM E FOR A.Y 2008- 09 ON 23.10.2008 AND THE A.O, WHILE FRAMING THE ASS ESSMENT, HAD DISALLOWED AN AMOUNT OF RS. 58,86,151/- U/S 40(A)(I A) OF THE INCOME- TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] DUE TO NON DEPOSIT OF TAX BEFORE 30.9.2008. THE LD. AR FURTHER SUBMITTED THAT AS PER NEW RULE, ELECTRONIC PAYMENT OF TAX WAS MADE COMPULSORY W.E.F. 1.4.2008 AND THE ASSESSEE WAS REGULARLY DEPO SITING THE TAX THROUGH CHEQUE TILL MID OF SEPTEMBER 2008 AND WHEN THE ASSESSEE 3 ITA NO. 3060/DEL/201 1 3 TRIED TO DEPOSIT TDS THROUGH CHEQUE, BUT THE COMPAN Y REFUSED TO ACCEPT SAME BY WAY OF CHEQUE. CONSEQUENTLY, THE AS SESSEE APPLIED FOR ONLINE BANKING IN ICICI BANK IN THE THIRD WEEK OF SEPTEMBER AND TRIED ITS BEST TO GET ONLINE BANKING. THE LD. AR D REW OUR ATTENTION TOWARD THE PAPER BOOK OF THE ASSESSEE CONTAINING 17 PAGES AND POINTED OUT THAT THERE WAS SUFFICIENT BANK BALANCE WITH T OF RS. 20,14,379/- [PAPER BOOK PAGE 4] AS PER BANK ACCOUNT STATEMENT WITH ICICI BANK TO DEPOSIT RS. 7,26,666/- TDS ONLINE AND THE BANK ALSO ALLOTTED ID PASSWORD TO THE ASSESSEE [PAPER BOOK PA GE 12] BUT THE SAME, DESPITE OF SEVERAL REQUESTS AND EFFORTS BY TH E ASSESSEE TO THE BANK, COULD NOT BE ACTIVATED ENABLING THE ASSESSEE TO DEPOSIT TDS ONLINE TILL 30.9.2008 [PAPER BOOK PAGE 7 TO 11]. T HE LD. AR VEHEMENTLY POINTED OUT THAT THE ASSESSEE DESPITE OF ALL POSSIBLE BONAFIDE EFFORTS, COULD NOT DEPOSIT THE AMOUNT OF T DS ON OR BEFORE 30.9.2008 AND THE SAME COULD BE DEPOSITED ON 3.10.2 008 THROUGH STATE BANK OF INDIA AS 1.10.2008 WAS BANK HOLIDAY AND 2.10.2008 WAS PUBLIC HOLIDAY ON THE OCCASION OF THE BIRTHDAY OF T HE FATHER OF THE NATION MAHATMA GANDHI. THE LD. COUNSEL FOR THE ASS ESSEE POINTED OUT THAT THE AUTHORITIES BELOW DID NOT GIVE ANY ATTENTI ON TO THE FACTS AND CIRCUMSTANCES WHICH NARRATED THE BONAFIDE EFFORTS O F THE ASSESSEE TO DEPOSIT THE AMOUNT ON OR BEFORE 30.9.2008 AND IGNOR ED A VITAL POINT THAT THE CIRCUMSTANCES WHICH COULD LEAD TO ONLY THR EE DAYS IN DEPOSITING THE TDS WERE BEYOND THE CONTROL OF THE A SSESSEE. THE LD. 4 ITA NO. 3060/DEL/201 1 4 AR STRENUOUSLY CONTENDED THAT THE A.O AS WELL AS TH E LD. CIT(A) IGNORED THESE VITAL FACTS THAT THE ASSESSEE GOT THE ID AND PASSWORD FOR MAKING ONLINE PAYMENT OF TAX BUT DESPITE OF SEVERAL REQUESTS TO THE ICICI BANK IT COULD NOT BE ACTIVATED BEFORE 30.9.20 08 AND AFTER BANK HOLIDAYS, THE TAX WAS DEPOSITED ON 3.10.2008 THROUG H SBI WHICH SHOWS THE BONAFIDE EFFORTS OF THE ASSESSEE TO DEPOSIT TDS ON TIME. THE ASSESSEE CANNOT BE EXPECTED TO DO OR PERFORM IMPOSS IBLE THINGS. THE LD. AR ALSO CONTENDED THAT THE THREE DAYS OF DELAY IN PAYMENT OF TDS WAS NOT INTENTIONAL OR DELIBERATE BUT IT WAS CAUSED DUE TO THE ABOVE STATED REASONS BEYOND THE CONTROL OF THE ASSESSEE. THE LD. AR SUBMITTED THAT THERE WAS A GOOD AND PLAUSIBLE REAS ONABLE CAUSE IN THE DELAY OF THREE DAYS IN DEPOSITING THE TDS, THER EFORE, IT WOULD BE JUSTIFIED TO ALLOW BENEFIT OF THE EXPENSES IN THE R ELEVANT A.Y. THE LD. AR ALSO EXPLAINED THAT THE REASONABLE CAUSE HAS B EEN DESCRIBED BY THE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF WOODWARD GOVERNORS INDIA [P] LTD VS. CIT [2002] 253 ITR 745 [DELHI] FOR THE PURPOSE OF APPLICATION OF SECTION 273C IN THE BACKD ROP OF SECTION 273B OF HT ACT, WHICH IS APPLICABLE TO THE FACTS OF THE PRESENT CASE. 6. TO SUPPORT THE ABOVE CONTENTIONS, THE LD. AR HAS ALSO PLACED RELIANCE ON THE RATIO AND PROPOSITION OF THE FOLLOW ING DECISIONS : 1. WOODWARD GOVERNORS INDIA (P) LTD. VS. CIT (2002] 25 3 ITR 0745 2. ESCORTS LTD. V. CIT (2002] 257 ITR 468 (DEL] 5 ITA NO. 3060/DEL/201 1 5 3. SC KRISHNASWAMY S. PD. V. UNION OF INDIA 281 ITR 305 (2006] 4. LIFE INSURANCE CORPORATION OF INDIA 219 ITR 410 (19 96] 5. ACIT V. JINDAL IRRIGATION SYSTEMS LTD. (HYD) 56 ITD 164 6. ACIT V. SRI. RAMACHANDRA 128 TTJ 408 (2010] (ITAT C HENNAI] 7. JAGDISH MALPANI V. ACIT 94 TTJ 321 (ITAT INDORE) 7. THE LD. COUNSEL OF THE REVENUE, REPLYING TO THE ABOVE CONTENTIONS, SUBMITTED THAT THE TDS WAS ACTUALLY DE POSITED ON 7.10.2008 AND NOT ON 3.10.2008 BY CHEQUE. HE FURTH ER POINTED OUT THAT THE TDS WAS DEDUCTED IN THE MONTH OF MARCH 200 8 BUT THE SAME WAS NOT DEPOSITED IMMEDIATELY WHICH DOES NOT SHOW T HE BONAFIDE OF THE ASSESSEE. THE LD. COUNSEL OF THE REVENUE ALSO CONTENDED THAT THE DELAY IN TDS PAYMENT CAN BE CONDONED ONLY BY THE CB DT U/S 119(2) OF THE ACT ON THE APPLICATION BY THE ASSESSEE AND THIS REMEDY HAS BEEN AVAILED BY THE ASSESSEE. THUS THE APPEAL OF THE AS SESSEE MAY BE DISMISSED. 8. IN REJOINDER, THE LD. AR CONTENDED THAT THE CHEQ UE WAS DEPOSITED ON 3.10.2008 WHICH IS CLEAR FROM THE RECE IPT AND PAY IN SLIP AVAILABLE AT PAGES 15 TO 17 OF THE PAPER BOOK. HE ALSO CONTENDED THAT THE BONAFIDE DELAY OF ONLY 3 DAYS, WHICH CAN BE CON DONED BY THE CBDT, CAN BE CONSIDERED AND CONDONED BY THE TRIBUNA L BY TAKING INTO CONSIDERATION THE TOTALITY OF FACTS AND CIRCUMSTANC ES AND BONAFIDE ACTS OF THE ASSESSEE. 6 ITA NO. 3060/DEL/201 1 6 9. ON CAREFUL CONSIDERATION OF THE ABOVE, WE ARE OF THE CONSIDERED VIEW THAT AS PER THE PAY IN SLIP AND CHALLAN, THE C HEQUE OF TDS WAS DEPOSITED WITH THE SBI ON 3.10.2008 AND THAT IT HAS TO BE PRESUMED AND IS AMPLY CLEAR THAT THE ASSESSEE DEPOSITED TDS ON 3.10.2008 WHICH WAS DELAYED BY 3 DAYS. WHEN WE FURTHER ANALYZE THE ACTS AND EFFORTS OF THE ASSESSEE, THEN WE FIND THAT THE ASSESSEE, FO R MAKING ONLINE PAYMENT OF TAX, SECURED ID AND PASSWORD FROM ICICI BANK BUT DESPITE OF SEVERAL REQUESTS, THE SAME COULD NOT BE ACTIVATE D ON OR BEFORE 30.9.2008 RESULTING INTO THE NON DEPOSIT OF TDS WIT HIN THE PRESCRIBED PERIOD. WE CANNOT IGNORE THE FACT THAT THE ASSESSE E HAS MADE SEVERAL EFFORTS AND REQUESTED THE BANK BUT HIS ONLINE PAYME NT OF TAX FACILITY COULD NOT BE ACTIVATED. THE DELAY CANNOT BE ATTRIB UTED TO THE ASSESSEE AS ACTIVATION OF ONLINE PAYMENT ACCOUNT WA S CAUSED BY THE SYSTEM FAILURE ON THE PART OF THE BANK AND NOT BY T HE ASSESSEE. UNDISPUTEDLY, AND ADMITTEDLY, 1.10.2008 WAS A BANK HOLIDAY AND 2 ND OCTOBER IS A NATIONAL HOLIDAY BEING BIRTHDAY OF MAH ATMA GANDHI. TDS WAS DEPOSITED ON THE VERY NEXT DAY, I.E. 3.10.2008 WHICH ALSO GOES TO PROVE THE BONAFIDE SINCERE EFFORTS ON THE PART OF T HE ASSESSEE. IN VIEW OF THE ABOVE NOTED FACTS, WE ARE SATISFIED THA T THERE WAS A PLAUSIBLE AND REASONABLE CAUSE WHICH CAUSED THREE D AYS DELAY IN DEPOSITING THE TAX TO THE EXCHEQUER, WHICH WAS BEYO ND THE CONTROL OF THE ASSESSEE. WE ALSO HOLD THAT THE ASSESSEE HAD S UFFICIENT FUNDS TO DEPOSIT TDS ON OR BEFORE 3.9.2008 AND IT ALSO MADE SEVERAL EFFORTS TO 7 ITA NO. 3060/DEL/201 1 7 DEPOSIT TAX WITHIN THE PRESCRIBED TIME FRAME BUT FA ILED TO DO SO DUE TO REASONS BEYOND HIS CONTROL. 10. NOW, AT THIS JUNCTURE, IT WOULD BE NECESSARY AN D APPROPRIATE TO RESPECTFULLY CONSIDER THE RATIO OF THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF ESCORTS LTD VS. CIT [ SUPRA] WHEREIN REFERRING TO THE MAXIM LEX NON COGIT AD IMPOSSIBILIA IT HAS BEEN HELD THAT THE LAW DOES NOT COMPEL A MAN TO DO WHICH HE C OULD POSSIBLY PERFORM. IN THE PRESENT CASE ALSO, THE ASSESSEE MA DE SEVERAL EFFORTS TO DEPOSIT TDS WITH PRESCRIBED TIME FRAME BUT THERE WAS DELAY OF THREE DAYS. IN OUR OPINION, WHEN THE ONLINE PAYMEN T FACILITY COULD NOT BE ACTIVATED BY THE BANK AND THE TWO DAYS LAPSE D DUE TO THE BANK AND PUBLIC HOLIDAY, THEN THE DEPOSIT OF TAX ON THE VERY NEXT WORKING DAY I.E. 3.10.2008 ALSO ESTABLISHES THE BONAFIDE AN D SINCERE EFFORTS ON THE PART OF THE ASSESSEE AND THE AUTHORITIES BELOW IGNORED THE VITAL POINTS OF FACT AND CIRCUMSTANCES LEADING TO DELAY I N DEPOSITING TDS. 11. IN THE ORDER OF THE ITAT CHENNAI BENCH, IN THE CASE OF ACIT VS. SHRI RAM CHANDRA [SUPRA] AS RELIED BY THE ASSESSEE, IT WAS HELD THUS: IN THE CASE OF KRISHNASWAMY S. PD. V. UNION OF INDIA [2006] 201 CTR (SCI 183 : [2006] 281 ITR 305 (SC), THE HON'BLE SUPREME COURT HAS HELD THAT THE MAXIM ACTUS CURIAE NEMINEM GARVABIT, I.E., AN ACT OF COURT SHALL PREJUDICE NO MAN, IS FO UNDED UPON JUSTICE AND GOOD SENSE WHICH SERVES A SAFE AND CERT AIN GUIDE FOR 8 ITA NO. 3060/DEL/201 1 8 THE ADMINISTRATION OF LAW. THE OTHER RELEVANT MAXIM IS LEX NON COGIT AD IMPOSSIBILIA - THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. THE LAW ITSELF AND ITS ADMINISTRATION IS UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL APHORISMS, ALL INTENTION OF COMPELLING IMPOSSIBILIT IES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEP TION IN THE CONSIDERATION OF PARTICULAR CASES. 9. IT IS ABUNDANTLY CLEAR FROM THE RECORDS THAT TH E TRUST DID ITS BEST TO TAKE BACK THE MONEY FROM M/S EGMORE BENEFIT FUND SOCIETY LTD. MONEY COULD NOT BE RECOVERED BECAUSE O F THE PENDENCY OF GARNISHEE PROCEEDINGS. AS THE INVESTMEN T WAS NOT UNDER THE CONTROL AND POSSESSION OF THE ASSESSEE, THEREFORE,SWITCHING OVER THE SAME IN CONFORMITY WIT H THE PRESCRIPTION OF S. 11 (5) OF THE ACT WAS AN IMPOSSI BILITY. THE CASE OF THE ASSESSEE TRUST, THEREFORE, COMES WITHIN, THE KEN OF THE MAXIM : HEX NON COGIT AD IMPOSSIBILIA. TAKING INTO CONSIDERATION THE ENTIRE CONSPECTUS OF THE FACTS AND RESPECTFULLY FOLLOWING THE PRECEDENT WE UPHOLD THE IMPUGNED ORDER. 12. IN THE ORDER OF ITAT INDORE BENCH IN THE CASE O F JAGDISH MALPANI VS. ACIT [SUPRA] IT WAS ALSO HELD THAT: 9. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY T HE PARTIES, IN VIEW OF THE MATERIALS AVAILABLE RECORD, AND ORDERS OF THE LOWER AUTHORITIES AND THE JUDGMENTS RELIED ON BY THE LEAR NED AUTHORISED REPRESENTATIVE. ADMITTEDLY, THERE WAS FIRE IN THE S TRONG ROOM OF THE DEPARTMENT WHEREIN THE SEIZED BOOKS AND DOCUMEN TS OF THE 9 ITA NO. 3060/DEL/201 1 9 ASSESSEE WERE DESTROYED. HAD THE SAME NOT BEEN DEST ROYED, ADMITTEDLY, THERE WAS NO EXCUSE WITH THE ASSESSEE F OR FILING THE RETURN LATE. THE ASSESSEE HAD ALSO APPLIED FOR THE COPIES OF THE SEIZED BOOKS AND DOCUMENTS TO THE DEPARTMENT ALONG WITH REQUIRED CHALLAN OF RS. LOO BUT DUE TO DESTRUCTION OF THE SAME IN THE FIRE, THESE COULD NOT BE SUPPLIED BY THE DEPART MENT TO THE ASSESSEE. THERE IS ALSO NO DOUBT THAT WHATEVER REAS ON FOR THE DELAY HAS BEEN ASSIGNED BY THE ASSESSEE WHICH WAS B EYOND HIS POWER AND CONTROL IS BONA FIDE ONE, BUT THE MATERIA L QUESTION BEFORE US IS AS TO WHETHER THERE IS SCOPE IN THE PR OVISIONS OF LAW TO ACCOMMODATE SUCH PERSON, KEEPING IN VIEW THE EXCEPT IONAL FACTS AND CIRCUMSTANCES OF THE CASE. THOUGH IMPOSSIBILITY OF PERFORMANCE IS IN GENERAL NO EXCUSE FOR NOT PERFORM ING AN OBLIGATION, YET WHEN THE OBLIGATION IS ONE IMPLIED BY LAW, IMPOSSIBILITY OF PERFORMANCE IS A GOOD EXCUSE. THE LAW ITSELF AND THE ADMINISTRATION OF IT, SAID SIR W. SCOTT, WITH R EFERENCE TO AN ALLEGED INFRACTION OF THE REVENUE LAWS, MUST YIELD TO THAT TO WHICH EVERYTHING MUST BEND, TO NECESSITY; THE LAW, IN ITS MOST POSITIVE AND PEREMPTORY INJUNCTIONS, IS UNDERSTOOD TO DISCLA IM, AS IT DOES IN IT GENERAL APHORISMS, ALL INTENTIONS OF COMPELLI NG TO IMPOSSIBILITIES, AND THE ADMINISTRATION OF LAWS MUS T ADOPT THAT GENERAL EXCEPTION IN THE CONSIDERATION OF ALL PARTI CULAR CASES (PAGE NO. 162 OF BROOMS LEGAL MAXIMS, 10TH EDN., BY HERB ERTS BROOM, LL.D). THERE IS ALSO NO DISPUTE THAT PROVISION LAID DOWN UNDER SECTION 80 OF THE IT ACT IS A MACHINERY PROVISION A ND AS PER THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CI T V. NATIONAL' TAJ TRADERS (SUPRA), RELIED ON BY THE LEARNED AUTHO RISED REPRESENTATIVE, RULE OF STRICT CONSTRUCTION APPLIES ONLY TO CHARGING 10 ITA NO. 3060/DEL/201 1 10 PROVISION OR ONE IMPOSING PENALTY AND NOT MACHINERY PROVISIONS. WE THUS ARE OF THE DEFINITE VIEW THAT THERE WAS SUF FICIENT REASON BEYOND HIS POWER AND CONTROL WITH THE ASSESSEE FOR DELAY IN FILING THE RETURN AND THE LAW DOES NOT COMPEL A MAN TO DO THAT WHICH HE CANNOT POSSIBLY PERFORM. WE FIND SUPPORT FROM THE R ATIO OF DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F CIT V. NATIONAL TAJ TRADERS (SUPRA), THAT RULE OF STRICT C ONSTRUCTION APPLIES ONLY TO CHARGING PROVISION OR ONE IMPOSING PENALTY AND NOT TO THE MACHINERY PROVISIONS. WE THUS IN THE INTERES T OF JUSTICE FIND NO REASON TO DENY THE CLAIM OF CARRY FORWARD OF LOS S OF RS. 7,35,100 OF THE ASSESSEE ONLY ON THE BASIS THAT THE RETURN WAS FILED LATE DUE TO THE REASON WHICH WAS ADMITTEDLY A BONA FIDE ONE BEYOND THE POWER AND CONTROL OF BOTH THE PARTIES. W E THUS RESPECTFULLY FOLLOWING THE PRINCIPLE LAID DOWN IN T HE MAXIM 'LEX NON COGIT AD IMPOSSIBILLIA' AS DISCUSSED ABOVE AND THE RATIO OF JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CI T V. NATIONAL TAJ TRADERS (SUPRA), DIRECT THE AO TO ALLOW THE CLA IM OF CARRY FORWARD OF THE LOSS WHILE ACCEPTING THE RETURN OF I NCOME FILED BY THE ASSESSEE. 13. ON THE BASIS OF FOREGOING DISCUSSION, WE REACH TO A LOGICAL CONCLUSION THAT THE DELAY IN DEPOSITING THE CANNOT BE ATTRIBUTED TO THE ASSESSEE AS THE ASSESSEE HAD SUFFICIENT FUNDS T O DEPOSIT TAX AND HE ALSO SECURED ID AND PASSWORD TO MAKE ONLINE PAYMENT OF TDS. HOWEVER, THE SAME COULD NOT BE ACTIVATED AT THE END OF THE BANK, DESPITE SEVERAL REQUESTS BY THE ASSESSEE, HENCE THE TAX COULD NOT BE DEPOSITED ON OR BEFORE 30.9.2008 AS PER PROVISIONS OF THE ACT. WE ARE 11 ITA NO. 3060/DEL/201 1 11 SATISFIED THAT DESPITE OF ALL POSSIBLE AND SINCERE EFFORTS ON THE PART OF THE ASSESSEE, THE DELAY OF THREE DAYS OCCURRED WHIC H CANNOT BE ATTRIBUTED OR ALLEGED AGAINST THE ASSESSEE FOR MAKI NG DISALLOWANCE OF THE IMPUGNED AMOUNT. THUS THE DISALLOWANCE IS DEMO LISHED AND THE A.O IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE IN THIS REGARD. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22.07. 2016. SD/- SD/- (L.P. SAHU) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND JULY, 2016 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI