The District Magistrate Collectorate, Shahjahanpur V. Income Tax Officer (TDS), Bareilly

ITA 307/LKW/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0473 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-10-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 16-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT NIGARM
• Keywords: Condonation of delay; TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “B”, LUCKNOW BEFORE SHRI. VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No.302 TO 307/LKW/2019 Assessment Year: 2010-11 TO 2015-16 The District Magistrate Collectorate Shahjahanpur v. The Income Tax Officer (TDS) Bareilly TAN/PAN: LKNC06023D (Appellant) (Respondent) Appellant by: Shri Jitendra Kumar Yadav, Advocate Respondent by: Shri Amit Nigarm, D.R. Date of hearing: 18 10 2022 Date of pronouncement: 18 10 2022 O R D E R PER BENCH: These six appeals by the assessee are directed against six separate orders of the ld. CIT(A), Bareilly, all dated 5.2.2019, arising from the orders passed by the Assessing Officer under section 206C of the Income Tax Act, 1961, for the Assessment Years 2010-11 to 2015-16 respectively. 2. There is an application for adjournment by one Shri Abhinav Mehrotra, Advocate. However, it transpires from the record that there is no authority in favour of Shri Abhinav Mehrotra, Advocate. Further, we noted that the ld. CIT(A) has not decided the appeals of the assessee on merit, but the same were dismissed in limine on the ground of limitation as well as defect of not filing the appeals online, therefore, we propose to hear and dispose of these appeals ex-parte. Page 2 of 7 3. The assessee has raised common grounds in these appeals. The grounds raised for Assessment Year 2010-11 are reproduced hereunder: 1. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), confirming the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since the instant assessee is not a "person" for the purpose of section 206C (6C) of the Income Tax Act and hence the instant proceedings are patently illegal and bad in law. 2. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), confirming the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since the assessment order is itself barred by limitation. 3. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), sustaining the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since the authorities have not considered the proviso contained under sub section (6A) of Section 206C of the Income Tax Act and have misapplied the provisions of the Act. 4. BECAUSE, on the facts and in the circumstances of the case, the Ld. CIT(A) has further erred in holding the TCS is applicable on "sand excavation" and brick kilns" since the same are outside of the preview of Mines and Minerals act and otherwise also TCS is not applicable on the same. 5. BECAUSE, on the facts and in the circumstances of the case, the Ld. CIT(A in refusing to condone the delay since the same got occasioned on account of bonafide reasons beyond the control of the assessee and that there is no malafide in not preferring the appeal within time. 6. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), sustaining the order of ITO (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since it is voilative Page 3 of 7 of the principles of natural justice as no Notice have been served by the Assessing Officer before passing the impugned order. 7. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT (A), sustaining the order of ITO1 (TDS) u/s 206C (6A) of the Income Tax Act is unsustainable and bad in law since the demand raised upon the assessee is based on wrong calculation made by the Assessing Authority and the same is unsustainable in law. 8. BECAUSE, on the facts and in the circumstances of the case, the ld. CIT(A) is not justified in refusing to adjudicate upon the grounds of appeal by the assessee concerning the instant controversy citing the reason that provisions of Rule 46A were attracted and the same were not satisfied. The provisions of Rule 46A are extraneous to the instant controversy and the Ld. CIT (A) has grossly erred in invoking the said provision. 9. BECAUSE, on the facts and in the circumstances of the case, the impugned order passed by Ld. CIT(A) is unsustainable being non speaking and highly cryptic. 10. BECAUSE, on the facts and in the circumstances of the case, the CIT (A) has passed the order without providing the assessee with a due and proper opportunity of hearing and therefore the impugned order deserves to be set-aside being bad in law. 4. The ITO (TDS), Bareilly passed the orders under section 206C of the I.T. Act, due to default on the part of the assessee in collecting the tax at source (TCS) in respect of Royalty amount received for these six years. The assessee challenged the orders of the Assessing Officer by filing appeals before the ld. CIT(A) and there was a delay of six months in filing of these appeals before the ld. CIT(A). The ld. D.R. has submitted that the assessee has not explained the delay in filing the appeals to the satisfaction of Page 4 of 7 the ld. CIT(A) and further these appeals were not filed as per Rule 45 of the Income Tax rules, 1962. Thus, he has submitted that the ld. CIT(A) has rightly dismissed the appeals being barred by limitation as well as for want of filing the appeals electronically. Since nobody has argued on behalf of the assessee, therefore, we do not have the privilege to consider the arguments of the assessee. However, we find that the assessee has filed an application for condonation of delay before the ld. CIT(A), which has been reproduced by the ld. CIT(A) in para 2 of the impugned order, as under: “The assessee was unaware of the procedure of filing online appeal and had even requested Ld. CCIT to interfere into the matter for manual submission of appeal, due to which there was delay in filing of appeal. The original assessment order was lost, due to which an application for duplicate copies were made and therefore there is delay in filing appeal.” 5. The ld. CIT(A) has dismissed the appeals of the assessee vide paras 5 to 5.3 of the impugned order, as under: “5.1 In this case, hearing was fixed on 31.03.2019. No further reasons were, however, furnished for late filing of appeal. I have considered the reason for delay in filing of appeal. The appellant has mentioned two reasons for not filing the appeal in lime, the first one being, that it was unaware of the procedure of filing online appeal and the second, that the original assessment order was lost. The procedure for filing of appeal is a simple process, which can be easily understood in a day of-two. Also, it would be worthwhile to mention that when other Collectorates are able to do so, what prevented the appellant from filing the appeal online Regarding loss of original order, it only shows a casual approach of the appellant towards the important legal Page 5 of 7 liabilities. Government agencies like Collectorate should be even more vigilant about their legal onus, because they have the luxury of having a separate vertical looking after the taxation matters. In this case, the matter is more serious, because there is inordinate delay in filing of the appeal. Therefore, I do not find any force in the submission for late filing of appeal. 5.2 Generally, the courts, including the Supreme Court adopt a liberal in considering application for condonation of delay on the ground of “Sufficient Cause". However, the concept of liberal approach or justice oriented approach cannot be employed to jettison the substantial law of limitation. This was held by the Hon'ble Supreme Court in the case of Lanka Venkateshwarlu Vs. State of Pradesh, AIR (2011) SC 1199. Again The Hon'ble Supreme Court in the case G. Ramagowda Vs Special Land Acquisition Officer, AIR 1988 SC 897 held that expression 'sufficient cause' must receive a liberal construction so as to advance justice where no gross negligence or deliberate in action or lack of bonafides is imputable to the party seeking condonation of delay. 5.3 The reason forwarded by the appellant for the delayed appeal is nothing else but gross negligence and inaction. The delay seems to have happened because there was no priority in the mind of the appellant to file the appeal, which is very much clear from the reason advanced by the appellant. Hence, the appeal of the appellant is not admitted due to being late without any 'sufficient cause' as mentioned in section 249(3) of the Income Tax Act, 1961.” 6. The ld. CIT(A) has referred to various precedents of the Hon'ble Supreme Court. However, the relevant and crucial fact, which was explained by the assessee was that the original Page 6 of 7 assessment order was lost in the office, due to which the assessee obtained certified and authenticated copies of the orders passed by the ITO and thereafter the appeals were filed. We further noted that this was a transition period from physical filing to electronic filing and the assessee has explained the difficulty in filing the appeal electronically, which has also led to the delay in filing of the appeal electronically. It is pertinent to note that the assessee is not going to be benefitted or going to achieve any ulterior purpose by filing the appeals belatedly, then sufficient cause for delay ought to have been considered liberally. In our view, the appeals should have been decided by the ld. CIT(A) on merit instead of dismissing on technical reason. Accordingly, having considered the facts and the circumstances of the case and the reason explained by the assessee for condonation of delay, we find that the assessee was having reasonable and sufficient cause for delay in filing of the appeal before the ld. CIT(A). Accordingly, in the interest of justice, the delay of six months in filing of the appeals before the ld. CIT(A) is condoned for all the six years. 7. Since the ld. CIT(A) has not decided the appeals on merits, therefore, the orders of the ld. CIT(A) is set aside and the matter remitted to the file of the ld. CIT(A) for fresh adjudication of all the six appeals on merit after affording an opportunity of hearing to the assessee. 8. In the result, all the six appeals of the assessee for Assessment Years 2010-11 to 2015-16 are allowed for statistical purposes. Page 7 of 7 Order is pronounced in the open Court on conclusion of the hearing on 18/10/2022. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:18/10/2022 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Assistant Registrar