M/S. RAI UDYOG LTD., NAGPUR V. JOINT COMMISSIONER OF INCOME TAX (TDS), NAGPUR

ITA 311/NAG/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8190 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 25-09-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY MARATHE LD.
• Keywords: Non-deduction of tax; Condonation of delay; TDS
• Section: 154; 201(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR ITAT-Nagpur Page 1 of 5 (Through Virtual hearing from ITAT, Pune) BEFORE HON’BLE SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपऩल स ं . / ITA No. 311 & 312/NAG/2022 निर्धारण वषा / Assessment Year : 2014-15 Rai Udyog Limited 1, Rajat Sankul, Opp. Bus Stand, Ganesh Peth, Nagpur-440018 PAN: AACCR6008G . . . . . . . अपीलार्थी / Appellant बिधम / V/s Income Tax Officer (TDS) Hq-1 / Joint Commissioner of Income Tax (TDS), Nagpur . . . . . . . प्रत्यर्थी / Respondent द्वधरध/ Appearances Assessee by : None for the Assessee Revenue by : Mr Abhay Marathe [‘Ld. DR’] स ु नवाई की तारीख / Date of conclusive Hearing : 21/03/2024 घोषणा की तारीख / Date of Pronouncement : 21/03/2024 आदेश/ ORDER PER G. D. PADMAHSHALI, AM; By these Twin appeals the assessee challenged against the DIN & order No. ITBA/NFAC/S/250/2022-23/1044245542(1) & ITBA/NFAC/S/250/2022- 23/1044244849(1) both dt. 28/07/2022 passed u/s 250 of the Income-tax Act, 1961 [‘the Act’ hereinafter] by the National Faceless Appellate Centre [‘NFAC’ hereinafter] for assessment year 2014-15 [‘AY’ hereinafter]. 2. These cases were called twice; none appeared at the bequest of the assessee. In the absence of appellant, with able assistance from Revenue we deem it fit to proceed to adjudicate these matters ex-parte u/s 24 of the Income Tax Appellate Rules, 1963. [‘ITAT-Rules’]. Rai Udyog Limited ITA No.311 & 312/NAG/2022 ITAT-Nagpur Page 2 of 5 3. Since the facts and solitary issue involved in these twin appeals are interrelated, on the request of Ld. DR Mr Marathe, for the sake of brevity these are heard together for a common and consolidated order. 4. Briefly stated the facts relating to ITA No. 311/NAG/ 2023 are; 4.1 The assessee is a company in whose case an order u/s 201(1) & 201(1A) r.w.s. 194IA of the Act was passed on 12/02/2018 determining a demand of ₹3,91,000/- on account of failure to deduct tax at source [‘TDS’ hereinafter] u/s 194IA of the Act from the payment made by it against the purchases of immovable property/s. On an application u/s 154 by the assessee, the Ld. Income Tax Officer (TDS-Hq1) [‘ITO’ hereinafter] by an order dt. 27/07/2018 rectified the arithmetical mistake in computing the interest leviable on non-deduction of TDS which consequently resulted in reducing the earlier demand to ₹3,59,066/-. 4.2 Still aggrieved by the outcome, the assessee instituted an appeal before Ld. NFAC u/s 246A(1)(c) of the Act on 04/03/2021 with a delay of 948 days. During the appellate proceedings the assessee was granted as many as three opportunities vide separate notice dt. 21/05/2022, 07/06/2022 and 07/07/2022, however these remained unresponded. In the absence of evidence justifying/explaining the delay the Ld. NFAC dismissed the appeal in limine on the ground of limitation. 5. Briefly stated the facts relating to ITA No. 312/NAG/ 2023 are; 5.1 On a reference from Ld. ITO about the assessee’s failure to deduct TDS u/s 194IA of the Act, the Ld. JCIT initiated the penalty proceedings and after considering the submission of the appellant, has culminated the proceedings by Rai Udyog Limited ITA No.311 & 312/NAG/2022 ITAT-Nagpur Page 3 of 5 imposing penalty u/s 271C of the Act equal to 100% of TDS sought to be deducted from the payment made against the purchase of immovable property. 5.2 Aggrieved by the imposition the assessee in this case too instituted an appeal before Ld. NFAC u/s 246A(1)(c) of the Act on 18/02/2021 with a delay of 1014 days. During the appellate proceedings the assessee was granted as many as three opportunities vide separate notice dt. 21/05/2022, 07/06/2022 and 07/07/2022, however these remained unresponded. In the absence of evidence justifying the delay the Ld. NFAC dismissed the appeal in limine on the ground of limitation. 6. Aggrieved by these separate impugned orders of Ld. NFAC, the assessee company came in present appeals with as many as eight grounds, which at the outset we found are inconsonance with rule 8 of ITAT Rules, hence we deem unnecessary to reproducing them here for the purpose of our adjudication. 7. During the course of virtual hearing, Ld. Mr Marathe after solidifying the facts of these cases has submitted that, the appellant company did fail to establish the reasonable cause beyond unreasonable delay in filing these appeals. Moreover, the appellant has merely filed these appeals without any intention to prosecute them seriously and this fact can be vouched from the records that in- spite of ample and separate opportunities granted to it, the appellant did not attend the hearing nor did it make any written representation in support of its claims. In the event the orders of tax authorities remained flawless, hence they deserve to be confirmed and consequently this twin appeal of the appellant deserves to be dismissed. Rai Udyog Limited ITA No.311 & 312/NAG/2022 ITAT-Nagpur Page 4 of 5 8. We have heard Ld. DR and perused the material placed on record in light of rule 18 of ITAT-Rules and noted that the order of rectification u/s 154 of the Act was passed on 27/07/2018 and order levying penalty u/s 271C of the Act was passed on 11/05/2018, whereas the appeal thereagainst before the Ld. NFAC were filed on 04/03/2021 & 18/02/2021 respectively. Ostensibly there is unsubstantial delay in instituting these appeals and were admittedly filed without accompanying petition for condonation of delay stating therein the circumstance due to which said delay was occurred/caused. 9. We however note that while dismissing these appeals in limine on the ground of limitation, the Ld. NFAC overlooked the fact that substantial part of the delay in instituting these appeals [i.e. period from 15.03.2020 till 28.02.2022] stand excluded for the purposes of limitation by the Hon’ble Apex Court vide it judgement in MA-21-&-29/2022 dt. 10/01/2022. But it is on record that only balance delay remained unexplained by the appellant. 10. In our considered view, non-filing of petition for condonation and explain the reasons of delay sufficiently is a technical but curable defect. Therefore, these defects by no means can solitarily deprive the appellant from seeking adjudication on merits, unless such delay appearing to be deliberate. On the other hand, perusal of records in no manner capable of suggesting us that the delay in filing these twin appeals by the appellant is deliberate. Therefore, this technical reason should not take away the right of appellant to contest its case on merits. In ‘Vijay Vishin Meghani Vs. DCIT & Anr’ reported 398 ITR 250 (Bom) and ‘Collector, Land Acquisition, Anantnag and Anr. Vs Ms Katiji and Others’ Rai Udyog Limited ITA No.311 & 312/NAG/2022 ITAT-Nagpur Page 5 of 5 reported at 167 ITR 5 (SC), their Hon’ble Lordship have categorically held that, ‘none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal.’ 11. Placing reliance on recent judgement of Hon’ble Supreme Court rendered in ‘Raheem Shah & ANR Vs Govind Singh & Ors’ [CIVIL APPEAL NO. 4628 OF 2023], we are heedful to state that, dismissal on technical ground was unwarranted because while dealing with tax litigation, the Ld. NFAC being a quasi-judicial authority was expected to adopt justice oriented approach rather resorting to iron-cast technical one. 12. In view of aforestated discussion, without offering any comments on the merits of the case, in the larger interest of justice we deem it fit to set-aside these impugned orders and remit them back to the Ld. NFAC with a direction deal therewith de-nova in accordance with law and pass a speaking order in terms of section 250(6) of the Act, ergo ordered accordingly. 13. In the result, these twin appeals are allowed for statistical purposes. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Thursday, 21st day of March, 2024. -S/d- -S/d- S. S. GODARA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER प ु णे / PUNE ; ददना ां क / Dated : 21st day of March, 2024. आदेशकीप्रनिनलनपअग्रेनषि / Copy of the Order forwarded to : 1.अपीलाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. The Pr.CIT Concerned. 4. The NFAC Delhi 5. DR, ITAT, Nagpur Bench, Nagpur 6.गार्डफ़ाइल / Guard File. आदेशान ु सार / By Order वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादधकरण, प ु णे / ITAT, Pune.