BUREAU FOR PARTNERSHIPS IN RAJASTHAN SOCIETY, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CPC, TDS, GHAZIABAD

ITA 338/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5036 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 13-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Corroborative evidences; TDS; Set aside
• Section: 234E; 200A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE : SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 338/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2017-18 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY, B-BLOCK, YOJANA BHAWAN, TILAK MARG, C-SCHEME, JAIPUR CUKE VS. THE ACIT (CPC TDS) AAYAKAR BHAWAN, SECTOR-3, VAISHALI,GHAZIABAD (U.P.) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AACTB 5302 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VISHAL GUPTA, CA JKTLO DH VKSJ LS@ REVENUE BY : MS. CHANCHAL MEENA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/02/2020 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20/02/2020 VKNS'K@ ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A) -3, JAIPUR DATED 15-01-2019 ARISING FROM THE ORDER OF LEVY OF FEES PASSED U/S 200A R.W.S. 234E OF THE ACT FOR TH E ASSESSMENT YEAR 2016-17. THE ASSESSEE HAS RAISED THE FOLLOWING GROU NDS. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING THE LATE ITA NO.338/JP/2019 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY VS ACIT,CPC, TDS, GHAZIABAD 2 FILING FEES WITHOUT GIVING REASONABLE OPPORTUNITY O F BEING HEARD. 2. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE AND IMPOSING PENALTY WITHOUT CONSIDERING THE EXCEPTIONAL CIRCUMSTANCES PREVAILIN G WITH THE ASSESSEE IN LATE FILING THE TDS STATEMENTS. 3. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACT OF THE CASE THAT INITIAL STATEMENT WAS FIL ED ON TIME. THERE IS NO DEFAULT OF THE PROVISIONS OF SECTION 20 0(3) 2.1 THE LD.AR OF THE ASSESSEE HAS SUBMITTED THAT TH E ASSESSEE IS A SOCIETY INCORPORATED BY THE ORDER OF GOVT. OF RAJAS THAN DATED 3/04-03- 2015 FOR THE REFORMS AND RESTRUCTURING OF VARIOUS S ECTORS TO ATTRACT PRIVATE INVESTMENT, TO IMPROVE EFFICIENCIES, TO REDUCE COST S THROUGH PUBLIC PRIVATE PARTNERSHIP I.E. PPE ETC. THE ASSESSEE WAS A SOCIET Y REGISTERED UNDER RAJASTHAN SOCIETY REGISTRATION ACT, 1958 ON 9-03-20 15. THEREFORE, THE ASSESSEE SOCIETY IS A BODY INCORPORATED BY THE GOVT . OF RAJASTHAN. FURTHER THE ASSESSEE SOCIETY HAS BEEN FORMED AS A NON-PROFI T MOTIVE SOCIETY AND TO CARRY OUT THE DIRECTIONS AND INSTRUCTIONS OF THE ST ATE GOVT. FOR ACHIEVING ITS OBJECTS. SUBSEQUENTLY, THE ASSESSEE SOCIETY BEC AME NON-FUNCTIONAL AND WAS WOUND UP/ DISSOLVED W.E.F. 15-11-2017.THE GOVT. OF RAJASTHAN HAS ACKNOWLEDGED THE DISSOLUTION OF THE ASSESSEE SOCIET Y. THE PAYMENT IN QUESTION ON WHICH ASSESSEE SOCIETY DEDUCTED TDS IS RENT PAID TO ITA NO.338/JP/2019 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY VS ACIT,CPC, TDS, GHAZIABAD 3 RAJASTHAN FINANCIAL CORPORATION (FOR SHORT RFC) . RFC IS A CORPORATION OWNED AND CONTROLLED BY THE GOVT. OF RA JASTHAN AND IT WAS FORMED BY A NOTIFICATION OF STATE GOVT. ON 17-01-19 55 UNDER THE SFCS ACT, 1951 WHICH IS A CENTRAL ACT. THE ASSESSEE DEDU CTED THE TDS OF RS. 54,248/- AGAINST PAYMENT OF RENT TO RFC. THE CHALLA N OF TDS WAS DULY DEPOSITED IN TIME BY THE ASSESSEE. HOWEVER, INADVER TENTLY THE ASSESSEE COULD NOT FILE THE QUARTERLY STATEMENT RELATING TO QUARTER -2 FOR THE FINANCIAL YEAR 2016-17 RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION. SUBSEQUENTLY WHEN THIS MISTAKE CAME TO THE NOTICE O F THE ASSESSEE DURING AUDIT, THE STATEMENT CONTAINING CORRECT DETAIL WAS FILED ON 19-09-2017. HOWEVER, THE ACIT, CPC-TDS LEVIED LATE FEE OF RS.54 ,250/- U/S 234E OF THE ACT ON ACCOUNT OF DEFAULT IN NOT FILING THE TDS STATEMENT. THE LD.AR OF THE ASSESSEE POINTED OUT THAT THE LD. CIT(A) DIS MISSED THE APPEAL OF THE ASSESSEE EX-PARTE WITHOUT PASSING A SPEAKING ORDER AND DECIDED THE ISSUE ON MERITS. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE NOTICES ISSUED BY THE LD. CIT(A) WERE NOT RECEIVED BY THE ASSESSEE SO CIETY AND THEREFORE, THERE WAS NO REPRESENTATION/ APPEARANCE BEFORE THE LD. CIT(A). THUS THE LD.AR OF THE ASSESSEE HAS PLEADED THAT THE ASSESSEE MAY BE GRANTED ONE MORE OPPORTUNITY OF HEARING TO REPRESENT THE CASE B EFORE THE LD. CIT(A). ITA NO.338/JP/2019 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY VS ACIT,CPC, TDS, GHAZIABAD 4 2.2 ON THE OTHER HAND, THE LD. DR VEHEMENTLY OPPOSE D THE REQUEST OF THE LD.AR OF THE ASSESSEE FOR SETTING ASIDE THE MAT TER TO THE RECORD OF THE LD. CIT(A) AND SUBMITTED THAT THE LD. CIT(A) HAS GR ANTED NUMBER OF OPPORTUNITIES TO THE ASSESSEE BUT NOBODY HAD APPEAR ED BEFORE THE LD. CIT(A) ON ANY OF THE DATES OF HEARING FIXED BY THE LD. CIT(A). THUS DESPITE SEVERAL NOTICES ISSUED TO THE ASSESSEE AND GRANTED 4 OPPORTUNITIES OF HEARING TO THE ASSESSEE BY THE LD. CIT(A), NONE APPEARED ON BEHALF OF THE ASSESSEE. 2.3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIALS AVAILABLE ON RECORD. IT TRANSPIRES FROM T HE IMPUGNED ORDER OF THE LD. CIT(A) THAT INITIALLY HEARING OF THE APPEAL WAS FIXED ON 11-09-2018 BUT NOBODY APPEARED ON BEHALF OF THE ASSESSEE. CONS EQUENTLY, THE HEARING OF THE APPEAL WAS ADJOURNED TO 26-10-2018 AND NOTIC E WAS ALSO STATED TO BE ISSUED. THEREAFTER THE HEARING OF THE APPEAL WAS ADJOURNED TO 28-11- 2018 BUT NOBODY APPEARED ON BEHALF OF THE ASSESSEE. FINALLY, THE HEARING WAS FIXED ON 10-01-2019 BUT EVEN ON THE SAID DATE, NOBODY APPEARED ON BEHALF OF THE ASSESSEE. CONSEQUENTLY, THE LD. CIT(A ) PASSED THE IMPUGNED EX-PARTE ORDER. THUS IT IS CLEAR THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITIES OF HEARING BY THE LD. CIT(A). HOWEVER , WE FIND THAT THE LD. ITA NO.338/JP/2019 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY VS ACIT,CPC, TDS, GHAZIABAD 5 CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE SUM MARILY WITHOUT DECIDING THE ISSUE ON MERITS. THE RELEVANT FINDING OF THE LD. CIT(A) IN PARA 4 IS AS UNDER:- 4. THE PRESENT APPEAL IS AGAINST THE PENALTY ORDE R U/S 200A OF THE ACT. I HAVE CAREFULLY PERUSED THE G ROUNDS OF APPEAL AND THE PENALTY ORDER. AS ALREADY DISCUSSED ABOVE, THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION F OR SUBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED BY HIM D ESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 WHEREIN THE HON'BLE COURT HAS HELD THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGEMENT IN PLACE OF THE JUDGEM ENT OF THE AO UNLESS IT IS SHOW THAT THE JUDGEMENT OF THE AO W AS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS. IN THE INSTANT CASE, THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE AO WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BASIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE AO. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ASSESSEE BEING A NON-PROFIT MOTIVE SOCIETY ALREADY DISSOLVED / WOUND UP, WE ARE OF THE CONSIDERED VIEW THAT THE APPEAL OF THE ASSESSEE OUGHT TO HAVE BEEN DECIDED BY THE LD. CIT(A) ON MERITS BY PASSING A SP EAKING ORDER. ACCORDINGLY, IN THE INTEREST OF EQUITY AND JUSTICE, THE ORDER OF THE LD. ITA NO.338/JP/2019 BUREAU FOR PARTNERSHIP IN RAJASTHAN SOCIETY VS ACIT,CPC, TDS, GHAZIABAD 6 CIT(A) IS SET ASIDE AND THE MATTER IS REMANDED BACK TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AFTER GRANT ING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS MADE CLEAR THAT IF THE ASSESSEE FAILS TO APPEAR BEFORE THE LD. CIT(A) THEN THE OPPO RTUNITY OF HEARING GRANTED BY US SHALL STAND VACATED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /02/2 020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 /02/ 2020 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- BUREAUFOR PARTNERSHIP IN RAJASTHAN SOCIETY , JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CPC, TDS, GHAZIABAD 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 338/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR