GVK JAIPUR EXPRESSWAY (P) LTD, Jaipur V. ACIT(TDS), Jaipur

ITA 435/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5314 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 03-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH JCIT DR DHK
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 194C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 435,436,437 & 438/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2006-07 TO 2009-10 M/S. GVK JAIPUR EXPRESSWAY (P) LTD. 286 KM, TOLL PLAZA, AJMER ROAD, NA-8 VILLAGE-THIKARIA, JAIPUR CUKE VS. THE ACIT-TDS JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AABCG 5514 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL , CA JKTLO DH VKSJ LS@ REVENUE BY: MRS. NEENA JEPH, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/03/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31 /03/2016 VKNS'K@ ORDER PER BENCH:- THE ASSESSEE HAS FILED THESE APPEALS AGAINST COMMO N ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 27-03-2014 FOR THE ASS ESSMENT YEARS 2006-07 TO 2009-10 WHEREIN THE ASSESSEE HAS RAISED ALMOST C OMMON ISSUES IN ALL THE APPEALS. HOWEVER, FOR THE SAKE OF CONVENIENCE, WE ARE MENTIONING THE GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR A.Y. 200 6-07 AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS GROSSLY ERRED IN NOT CONDONING THE D ELAY IN FLING OF APPEAL BEFORE HIM BY VIRTUE OF POWER VEST ED U/S 249(3) WITHOUT PROPERLY APPRECIATING THE REASONABL E CAUSE IN ITA NO. 435//JP/2014 M/S. GVK JAIPUR EXPRESSWAY (P) LTD. VS. ACIT (TDS) , JAIPUR . 2 NOT FILING WITHIN THE PRESCRIBED TIME, THUS ACTION OF THE LD. CIT(A) DESERVES TO BE HELD BAD IN LAW AND THE CONSE QUENT ORDER PASSED BY THE LD. CIT(A) DESERVES TO BE SET A SIDE AND THE LD. CIT(A) BE DIRECTED TO DECIDE THE MATTER AFR ESH ON MERITS. 1.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN NOT APPRECIATING THE FACT THAT THE DELAY CAUSED IN FILI NG OF THE APPEAL IS PRIMARILY ATTRIBUTABLE TO THE MISTAKE OF THE COURIER AGENCY IN NOT DELIVERING THE NECESSARY DOCUMENTS O N TIME TO THE JAIPUR OFFICE OF THE APPELLANT COMPANY AND FAI LED TO APPRECIATE THAT THE ASSESSEE ALWAYS HAD ACTED BONAF IDE, THUS ACTION OF THE LD. CIT(A) IS AGAINST THE PRINCIPLE O F NATURAL JUSTICE, DESERVES TO BE HELD BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAININ G THE ACTION OF THE AO IN HOLDING THAT THE ASSESSEE HAS NOT DEDU CTED TAX AT SOURCE ON THE CHARGES PAID TO BANK WITHOUT CONSIDER ING THE FACT THAT THE ASSESSEE HAS MADE PAYMENT TO BANK ON WHICH ASSESSEE COMPANY WAS NOT LIABLE TO DEDUCT TAX AT SO URCE IN TERMS OF CIRCULAR NO. 93 DATED 26-09-1972 ISSUED BY CBDT THUS THE LIABILITY OF RS. 22,440/- CREATED U/S 201 AND RS. 14,137/- CREATED U/S 201(1A) DESERVE TO BE DELETED. 2.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG FACT THAT THE BANKERS HAS PROVIDED SERVICES TO THE ASSESSEE AS PER THEIR POLICY AND CHARGES LEVIED BY BANK FROM TH E MAINTENANCE OF THE ACCOUNT ARE IN ACCORDANCE WITH T HE PROVISION CONTAINED IN THE NEGOTIABLE INSTRUMENT AC T FOR WHICH THE PROVISION OF SECTION 194C ARE NOT APPLICA BLE, THUS THE LIABILITY OF RS. 22,440/- CREATED U/S 201 AND R S. 14,137/- CREATED U/S 201(1A) DESERVE TO BE DELETED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ACTI ON OF THE AO IN HOLDING THAT THE ASSESSEE IN DEFAULT FOR NON -DEDUCTION OF TAX AT SOURCE ON THE PAYMENT OF RS. 30,17,377/- MADE TO M/S. LEA ASSOCIATES WITHOUT CONSIDERING THE FACT TH AT THE ASSESSEE COMPANY HAS ALREADY DEDUCTED TDS ON SUCH ITA NO. 435//JP/2014 M/S. GVK JAIPUR EXPRESSWAY (P) LTD. VS. ACIT (TDS) , JAIPUR . 3 PAYMENT, THUS THE LIABILITY OF RS. 1,69,275/- CREAT ED U/S 201 AND RS. 1,01,565/- CREATED U/S 201(1A) DESERVE TO B E DELETED IN TOTO. ALTERNATIVE GROUND 4. WITHOUT PREJUDICE TO ABOVE IN THE ALTERNATIVE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AO H AS GROSSLY ERRED IN NOT REDUCING THE AMOUNT OF DISCOUNT RELATA BLE TO THOSE CHANNEL PARTNERS WHOSE RETURNS OF INCOME AND OTHER PARTICULARS OF INCOME WERE FILED BY THE ASSESSEE B EFORE THE AO IN TERMS OF DECISION OF HON'BLE SUPREME COURT I N THE CASE OF M/S. HINDUSTAN COCA BEVERAGE (P) LTD. VS. C IT 2.1 AT THE OUTSET OF THE HEARING THE LD. AR OF THE ASSESSEE PRAYED THAT THE APPEALS OF THE ASSESSEE HAVE NOT BEEN DECIDED B Y THE LD. CIT(A) ON MERIT BUT THE SAME HAVE BEEN DISMISSED BY THE LD. C IT(A) ON THE GROUND THAT THE APPEAL WAS FILED LATE BY 7 DAYS. THE LD. A R OF THE ASSESSEE ALSO PRAYED THAT THE DELAY WAS CAUSED IN FILING OF APPEA LS PRIMARILY DUE TO THE MISTAKE OF COURIER AGENCY I.E. M/S. BLUE DART COURE R SERVICES AND THAT THE ASSESSEE HAD ALWAYS ACTED IN A BONAFIDE MANNER AND DEPENDED ON THE EXPERTS TO ATTEND THE LEGAL FORMALITIES. THUS THE L D. AR OF THE ASSESSEE PRAYED THAT THE DELAY OF 7 DAYS IN FILING THE APPEA L MAY BE CONDONED AND THE APPEALS MAY KINDLY BE RESTORED TO THE FILE OF T HE LD. CIT(A) TO DECIDE THEM AFRESH ON MERITS BY PROVIDING REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 2.2 THE LD. DR VEHEMENTLY RELIED ON THE ORDER LD. C IT(A). ITA NO. 435//JP/2014 M/S. GVK JAIPUR EXPRESSWAY (P) LTD. VS. ACIT (TDS) , JAIPUR . 4 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT EMERGES FROM THE RECORD AND ARGUMENTS THAT THE DELAY OF 07 DAYS IN FILING THE APPEALS IS NOT ON A CCOUNT OF THE ASSESSEE BUT IT WAS ON THE PART OF THE COURIER AGENCY WHICH COULD NOT SUPPLY THE DOCUMENTS TO THE ASSESSEE IN TIME AND THE ASSESSEE HAD TO SUFFER ON THE LAPSE OF THE COURIER AGENCY. IT APPEARS THAT SUCH D ELAY OF SMALL 07 DAYS MAY BE CONDONED IN VIEW OF THE DECISION OF THE HON' BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KA TIJI AND OTHERS, 167 ITR 471 WHEREIN THE HON'BLE COURT HAS OBSERVED AS UNDER:- THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELA Y BY ENACTING SECTION 5 OF THE LIMITATION ACT, 1963, IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION ' SUFFICIENT CAUS E ' IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTI CE--THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTIO N OF COURTS. A JUSTIFIABLY LIBERAL APPROACH HAS TO BE ADOPTED ON P RINCIPLE. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT IMPL Y A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONAL, COMMON SENSE AND PRAGMATIC MANNER. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT AL L LITIGANTS, INCLUDING THE STATE AS A LITIGANT, ARE A CCORDED THE SAME TREATMENT AND THE LAW IS ADMINISTERED IN AN EVENHAN DED MANNER. THERE IS NO WARRANT FOR ACCORDING A STEP-MOTHERLY T REATMENT WHEN THE STATE IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. 'WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELI BERATE DELAY.' ITA NO. 435//JP/2014 M/S. GVK JAIPUR EXPRESSWAY (P) LTD. VS. ACIT (TDS) , JAIPUR . 5 THUS, IN VIEW OF THE DELIBERATIONS OF HON'BLE AP EX COURT IN THE CASE OF COLLECTOR , LAND ACQUISITION VS. MST. KATIJI AND OT HERS (SUPRA), THE DELAY IS CONDONED AND THE APPEALS OF THE ASSESSEE ARE R ESTORED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THEM AFRESH ON MERIT BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS AL L THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 /03/20 16. SD/- SD/- ( VH-VKJ-EHUK ) ( YFYR DQEKJ ) (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31 /03/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. GVK JAIPUR EXPRESSWAY (P) LTD. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT(TDS), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 3. VK;DJ VK;QDR@ CIT, 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO. 435/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR