ASSISTANT ENGINEER, AVVNL, SHRIMADHOPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CPC, (TDS), GHAZIABAD

ITA 361/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3683 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA CIT DHK
• Assessee Lawyers: ANKUR SALGIA
• Keywords: Condonation of delay; TDS; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NOS. 359, 360 & 361/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 24Q2 & 24Q4 AND 2014-15 24Q1. THE AEN (O&M), AJMER VIDHYUT VITARAN NIGAM LTD., SRIMADHOPUR. CUKE VS. THE ACIT, CPC, (TDS), GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. /TAN NO. JDHA 03463 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ANKUR SALGIA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.05.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/05/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THREE SEPARATE ORDERS OF LD. CIT (A), AJMER DATED 12 TH OCTOBER, 2017 & 5 TH OCTOBER, 2017 ARISING FROM THE ORDERS FOR LEVY OF FEES UNDER SECTION 234E READ WITH SECTION 200A(1) OF THE IT ACT FOR THE ASSESSMENT YEARS 2013-14 24Q2 & 24Q4 AND 2014-15 24Q1 RESPECTIVELY. 2. THERE IS A DELAY OF 65 DAYS, 62 DAYS AND 62 DAYS RESPECTIVELY IN FILING THESE APPEALS. THE ASSESSEE HAS FILED THE APPLICATION FO R CONDONATION OF DELAY WHICH IS SUPPORTED BY AFFIDAVIT OF THE ASSISTANT ENGINEER, A JMER VIDHYUT VITARAN NIGAM LTD., SRIMADHOPUR, SIKAR. 2 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. 3. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R ON CONDONATION OF DELAY OF 65 DAYS, 62 DAYS AND 62 DAYS RESPECTIVELY IN FILING THESE APPEALS. IT IS EXPLAINED THAT THE CONCERNED EMPLOYEE WHO WAS HANDLING THE MATTER MISPLACED THE IMPUGNED ORDERS PASSED BY THE LD. CIT (A) AND WENT ON LEAVE. AFTER HE RETURNED FROM LEAVE TRIED TO SEARCH THE ORDERS BUT FAILED AND THEREAFTE R FINALLY THE FILES ALONG WITH THE IMPUGNED ORDERS WERE FOUND. HENCE IT IS EXPLAINED T HAT THE DELAY IN FILING THE APPEALS IS NEITHER INTENTIONAL NOR WILLFUL BUT DUE TO THE UNAVOIDABLE CIRCUMSTANCES THAT THE CONCERN FILES WERE GOT MISPLACED AND ONLY AFTER THE FILES WERE TRACED OUT THE PRESENT APPEALS WERE FILED. THE LD. A/R OF THE ASSE SSEE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF STATE OF BI HAR VS. KAMSHEWAR PRASAD SINGH, AIR 2000 SC 2006 AS WELL AS IN THE CASE OF POONJA A RCADE VS. ASSTT. CIT, 326 ITR 123 OF HONBLE KARNATAKA HIGH COURT. HE HAS ALSO R ELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF VEDABAI VAIJAY ANATABAI BABURAO PATIL VS. SHANTARAM BABURAO PATIL, 253 ITR 798 (SC). THUS TH E LD. A/R HAS SUBMITTED THAT THE DELAY IN FILING THE APPEALS MAY BE CONDONED AND THE APPEALS MAY BE DISPOSED OFF ON MERITS. 3.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT THE ASSESSEE IS HABITUAL IN FILING THE APPEAL BELATEDLY. THE LD. CIT (A) VIDE IMPUGNED ORDER HAS DISMISSED THE APPEALS OF THE ASSESSEE AS TIME BARRED, THEREFORE, THE ASSESSEES CONDUCT DOES NOT DESERVE ANY LIBERAL APPROACH TO BE ADOPTED. 3 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS EXPLAINED THE DELAY THAT THE CONCERNED FILES ALONG WITH THE IMPUGNED ORDERS WERE GOT MISPLACED BY THE EMPLO YEE OF THE ASSESSEE AND ONLY WHEN THE FILES WERE FINALLY TRACED OUT, THE PRESENT APPEALS WERE FILED WITHOUT ANY FURTHER DELAY. THIS EXPLANATION HAS BEEN DULY SUPP ORTED BY THE AFFIDAVIT OF THE ASSISTANT ENGINEER OF THE ASSESSEE NIGAM. HAVING C ONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THERE IS NOTHING TO SHOW THAT THE ASSESSEE WOULD HAVE ACHIEVED ANY ULTERIOR PURPOSE BY FILING THE PR ESENT APPEALS BELATEDLY, ACCORDINGLY IN THE INTEREST OF JUSTICE WE CONDONE T HE DELAY OF 65 DAYS, 62 DAYS AND 62 DAYS RESPECTIVELY IN FILING THESE APPEALS. 5. THE ASSESSEE HAS FILED THE COMMON GROUNDS IN THE SE APPEALS AS UNDER :- ITA NO. 359/JP/2018 : IN THE FACTS & CIRCUMSTANCES OF THE CASE THE LD. CIT APPEALS, AJMER HAS ERRED IN NOT ADMITTING THE APPEAL FOR LATE FEES IMPOSED U/S 234E UNDER CLAUSE (C) OF SUB SECTION 1 OF 200A. 1. THE ASSESSEE HAS FILED AN APPEAL WITH LD. CIT (APPE ALS) AJMER WHICH WAS TECHNICALLY DELAYED. THE DELAY IN FILING THE APPEAL WAS DUE TO THE FACT THE APPELLANT/APPLICANT DID NOT REC EIVED ANY INTIMATION FROM DEPARTMENT, ON KNOWLEDGE FROM PORTA L THE ASSESSEE COMES TO KNOW AND HE FILED AN APPEAL THEREOF. 2. THE LD. CIT (APPEALS) HAS ERRED IN DISMISSING APPEA L AS NOT ADMITTED THE APPEAL ON THE BASIS OF REMAND REPORT F ROM AO AS EMAIL COMMUNICATION IS BEING EFFECTIVE FROM 20/10/2 015 AS PER NOTIFICATION NO. 89/2015. ALSO NSDL MADE MANDATORY IN TDS RETURN EMAIL ON 13/04/2016. 4 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. 3. THE LD. CIT (APPEALS) HAS ERRED IN DISMISSING APPEA L AS NOT ADMITTED WITHOUT CONSIDERING THE CASE ON MERITS. RE FUSING TO CONDONE DELAY HAS RESULT IN A MERITORIOUS MATTER BE ING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DE FEATED. 4. THE TAX WAS DEDUCTED & DEPOSITED IN TIME, THE ONLY DEFAULT IS DELAY IN FILING OF THE RETURN, THE ALLEGED DELAY IN FILIN G THE TDS STATEMENT HAS NOT RESULTED IN ANY LOSS OF REVENUE TO THE DEPA RTMENT AND, THEREFORE, THE DEFAULT, IF ANY, WAS PURELY VENIAL B REACH. THE ASSESSEE WAS BEING GOVT, COMPANY WORKING IN PUBLIC INTEREST AND THERE WAS NO MALA FIDE INTENTION OF NOT FILING THE TDS RETURN AT SOURCE WITHIN TIME. 5. AS PER PROVISION OF SEC. 234 E LATE FEE CANNOT BE R ECOVERED FOR TDS STATEMENTS WHICH WERE DUE FOR F.Y. 2011-12 AS WELL ON TDS STATEMENTS LATE FEE CANNOT BE RECOVERED FOR F.Y. 12 -13 IF NOT COLLECTED AT THE TIME OF DELIVERING TDS STATEMENTS TO THE DEPTT. PROVISION OF SEC. 234 E HAS BEEN MADE APPLICANT WIT H EFFECT FROM 1 ST JULY 2012. IT STATES THAT AMOUNT OF LATE FEE SHA LL BE PAID BEFORE DELIVERING A TDS STATEMENT. IT MEANS THAT A NY LATE FEE SHOULD HAVE FEE DEPOSITED JUST AT THE TIME OF DELIV ERING TDS STATEMENTS & NOT LATER THAN THIS. THE AUTHORIZED TI N-NSDL CENTRE WHICH ACCEPTED THE TDS STATEMENTS ALSO ACCEPTED THE RE WITHOUT LATE FEE, AS WELL AS THE SOFTWARE UTILITY OF THE TD S DEPTT. IT SELF ACCEPTED THESE WITHOUT LATE FEE. THERE WAS NO ENABL ING PROVISION IN SECTION 200A OF THE ACT FOR MAKING ADJUSTMENT IN RE SPECT OF THE STATEMENT FILED BY THE ASSESSEE WITH REGARD TO TAX DEDUCTED AT SOURCE BY LEVYING FEE UNDER SECTION 234E OF THE ACT . 6. IN THE FACTS & CIRCUMSTANCES OF THE CASE THE LEARNE D A.O. ERRED IN IMPOSING LATE FEE WITHOUT APPRECIATING THE FACTS & CIRCUMSTANCES OF THE CASE AND HENCE THE SAME SHOULD BE DELETED. 7. THAT THE ORDER IS BAD IN LAW. 8. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VA RY AND OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL WIT H THE PRIOR PERMISSION OF THE CHAIR. 6. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE IS A GOVERNMENT 5 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. COMPANY WORKING IN PUBLIC INTEREST AND THERE WAS NO MALAFIDE INTENTION FOR NOT FILING THE APPEAL IN TIME BEFORE THE LD. CIT (A). THE LD. A/R HAS POINTED OUT THAT ASSESSEE DID NOT RECEIVE ANY ORDER PASSED BY THE AO UNDER SE CTION 234E AND ONLY WHEN THE DEMAND NOTICE WAS RECEIVED BY THE ASSESSEE THE APPE ALS WERE FILED BEFORE THE LD. CIT (A) ON 26.08.2016. THE LD. A/R HAS FURTHER POI NTED OUT THAT THE LD. CIT (A) HAS GIVEN THE REFERENCE OF SENDING THE NOTICE THROUGH E -MAIL. HOWEVER, THE ASSESSEE DID NOT RECEIVE ANY SUCH DEMAND NOTICE PRIOR TO THE SER VICE OF THE NOTICE. THUS THE LD. A/R HAS SUBMITTED THAT THE LD. CIT (A) HAS DISMISSE D THE APPEALS OF THE ASSESSEE IN LIMINI WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSE E TO EXPLAIN THE DELAY, IF ANY, IN FILING THE APPEALS BEFORE THE LD. CIT (A). 6.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT THE LD. CIT (A) HAS GIVEN THE FINDING THAT THE DEMAND NOTICE WAS DULY SENT TO THE ASSESSEE THROUGH E-MAIL ON 23.12.2013 WHEREAS THE APPEALS WERE FILED BY THE AS SESSEE ON 26.08.2016. THUS THERE WAS A DELAY OF MORE THAN 31 MONTHS IN FILING THE APPEAL BEFORE LD. CIT (A) AND THERE WAS NO EXPLANATION ON BEHALF OF THE ASSES SEE. THE LD. D/R HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE LD. CIT (A) HAS DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINI BY RECORDING THE FINDING IN PARA 3 AS UNDER :- 3. THUS, FROM THE REPORT OF THE AO, IT IS CLEAR T HAT THE NOTICE OF DEMAND WAS SENT TO THE APPELLANT ON 23.12.2013 ON T HE EMAIL [e-mail] AND [e-mail] GIVEN BY THE APPELLANT. AS PER SECTION 249(2), THE APPEAL HA S TO BE PRESENTED 6 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. WITHIN 30 DAYS OF DATE OF SERVICE OF NOTICE OF DEMA ND. THE APPELLANT HAS NOT FILED THE APPEAL WITHIN THE PERIOD SPECIFIE D U/S 249(2). THERE IS AN INORDINATE DELAY IN FILING THE APPEAL. THE APPEL LANT IN HIS WRITTEN SUBMISSION FILED ON 12.10.2017 HAS CONTENDED THAT M AIL WAS NEVER RECEIVED BY THE APPELLANT. THE APPELLANT HAS NOT FU RNISHED ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS ARGUMENT. THEREFORE, THE ARGUMENT OF THE APPELLANT IS NOT ACCEPTED. I AM OF THE CONSIDERED VIEW THAT THE APPELLANT DID NOT HAVE ANY SUFFICIENT CAUS E FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD SPECIFIED U/S 249(2). HENCE, THE APPEAL IS DISMISSED AS NOT ADMITTED. THUS THE LD. CIT (A) HAS TAKEN INTO CONSIDERATION T HE ALLEGED SERVICE OF NOTICE OF DEMAND THROUGH E-MAIL. HOWEVER, OTHER THAN THE ALL EGED E-MAIL, NO OTHER RECORD WAS REFERRED FOR SERVICE OF NOTICE TO THE ASSESSEE. EVEN OTHERWISE, THE ASSESSEE WAS NOT HEARD ON THE POINT OF EXPLANATION OF DELAY, IF ANY, IN FILING THE APPEALS BEFORE THE LD. CIT (A). THEREFORE, WE ARE OF THE CO NSIDERED OPINION THAT THE LD. CIT (A) HAS DISMISSED THE APPEALS BEING BARRED BY LIMIT ATION EVEN WITHOUT GIVING A SPECIFIC OPPORTUNITY TO THE ASSESSEE TO EXPLAIN TH E DELAY, IF ANY. THE ASSESSEE HAS NOT CLAIMED ANY DELAY IN FILING THE APPEALS BEFORE THE LD. CIT (A) WHEREAS THE LD. CIT (A) HAS CONSIDERED THE APPEALS FILED BY THE ASSESSE E AS BARRED BY LIMITATION. ACCORDINGLY, IN SUCH A SITUATION, A DEFECTIVE MEMO WAS REQUIRED TO BE ISSUED TO THE ASSESSEE OR THE ASSESSEE OUGHT TO HAVE BEEN GIVEN A N EFFECTIVE OPPORTUNITY OF HEARING ON THE POINT OF DELAY. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE T HESE TWO APPEALS TO THE RECORD OF THE LD. CIT (A) FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND ALSO TO EXPLAIN THE CAUSE OF DELAY, IF ANY, IN FILING THE APPEALS. AFTER CONSIDERING 7 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR. THE EXPLANATION OF THE ASSESSEE, THE LD. CIT (A) SH ALL DECIDE THE ISSUE OF CONDONATION OF DELAY AND THEREAFTER THE APPEALS ON MERIT, IF NE ED ARISES. 8. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22/05/2 018. SD/- SD/- ( HKKXPUN ) ( FOT; IKY JKWO ( BHAGCHAND ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 22/05/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- AEN (O&M), AJMER VIDHYUT VITARAN NIGAM LTD., SRIMADHOPUR. 2. THE RESPONDENT THE ACIT, CPC, (TDS) GHAZIABAD, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 359, 360 & 361/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NOS. 359, 360 & 361/JP/2018 AEN AVVNL, SRIMADHOPUR.