HOTEL GURUDEVPRASAD PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CPC-TDS, MUMBAI

ITA 4366/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3959 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2014-2015
• Appeal Filed On: 13-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/ SHRI B.R.BASKARAN (AM) & AMARJIT SINGH (JM) I.T.A. NO. 4366 /MUM /20 1 7 (ASSESSMENT YEAR 20 14 - 15 ) I.T.A. NO. 4367/MUM/2017 (ASSESSMENT YEAR 2014 - 15) I.T.A. NO. 4368/MUM/2017 (ASSESSMENT YEAR 2014 - 15) I.T.A. NO. 4369/MUM/2017 (ASSESSMENT YEAR 2014 - 15) I.T.A. NO. 4370/MUM/2017 (ASSESSMENT YEAR 2014 - 15) HOTEL GURUDEVPRASAD PVT. LTD. SATTAR GAFOOR CHAWAL BEHIND HOTEL SACHIN, J.M. ROAD, SARVODAY NAGAR BHANDUP (WEST) MUMBAI - 400 078. PAN : AABCH503 3Q VS. DY. CIT, CPC - TDS AAYAKAR BHAVAN SECTOR - 3, VAISHALI GAHAZIABAD UP - 201 010. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI MANOJ KUMAR DATE OF HEARING 3 1 .10 . 201 8 DATE OF PRONOUNCEMENT 31 . 10 . 201 8 O R D E R PER B EN CH : - ALL THESE APPEAL FILED BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDER DATED 15.3.2017 PASSED BY THE LEARNED CIT(A) - 59, MUMBAI AND IT RELATES TO A.Y. 2014 - 15. THE ASSESSEE HAS CHALLENGED THE DECISION OF THE LEARNED CIT(A) IN REJECTING THE APPEA LS FILED BY THE ASSESSEE CHALLENGING THE LEVY OF FEES U/S. 234E OF THE ACT. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AND WE NOTICED THAT THE REGISTERED POST SEND BY THE REGISTRY HAS BEEN RETURNED UN - SERVED. WE NOTICED THAT THE LEARNED CIT(A) HAS DISMISS ED THE APPEALS IN LIMINE FOR THE REASON THAT THESE APPEALS HAVE BEEN FILED BELATEDLY BY AROUND 343 DAYS. IN VIEW OF THE ABOVE, WE PROCEED TO DISPOSE OF THE APPEALS EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. HOTEL GURUDEVPRASAD PVT. LTD 2 3. WE NOTICED THAT THE ASSESSEE HAS FILED TDS RETU RNS FOR EACH OF THE QUARTERS FALLING IN FINANCIAL YEAR 2013 - 14 BELATEDLY . H ENCE WHILE PROCESSING TDS RETURN S F ILED BY THE ASSESSEE , THE REVENUE HAS RAISED DEMAND U/S. 234E OF THE ACT IN ALL THE TDS RETURNS . THE RETURN S FILED BY THE ASSESSEE HAS BEE N PROCESSED SOMETIME IN THE MONTH OF JULY, 2014. THE ASSESSEE FILED APPEALS CHALLENGING THE LEVY OF FEES IN AUGUST, 2015, RESULTING IN DELAY OF AROUND 340 - 343 DAYS IN EACH OF THE APPEALS . WITH REGARD TO THE DELAY, T HE ASSESSEE SUBMITTED THAT THE AMENDM ENT TO SECTION 200A OF THE ACT AUTHORIZING THE LEVY OF FEES U/S. 234E OF THE ACT , WHILE PROCESSING THE TDS RETURNS, WAS BROUGHT INTO ACT ONLY W.E.F.1.6.2015. IT WAS F URTHER STATED THAT SEPARATE NOTICE OF DEMAND WAS NOT SERVED UPON THE ASSESSEE, MEANING THEREBY, THE ASSESSEE WAS WAITING FOR DEMAND NOTICE FOR FILING THE APPEALS. AFTER SOME TIME, THE ASSESSEE, WITHOUT WAITING FOR FORMAL NOTICE OF DEMAND , HAS PREFERRED THE APPEAL S AT EARLIEST POSSIBLE OPPORTUNITY. ACCORDINGLY, IT WAS SUBMITTED BEFORE THE LE ARNED CIT(A) THAT DELAY IN FILING THE APPEALS WAS ON ACCOUNT OF TECHNICAL REASON S AND ALSO FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE. THE LEARNED CIT(A), HOWEVER, WAS NOT CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEE AND HENCE DISMISSED ALL THE APPE ALS IN LIMINE , WITHOUT ADMITTING THEM . 4. WE HEARD LD DR AND PERUSED THE RECORD. O N GOING THROUGH THE REASONS FURNISHED BY THE ASSESSEE FOR FILING THE APPEAL S BELATEDLY BEFORE THE LEARNED CIT(A), WE NOTICED THAT THE ASSESSEE HAS WAITED FOR NOTICE OF DEMA ND FOR FILING THE APPEAL AND IT IS THE SAY OF THE ASSESSEE THAT N OTICE OF DEMAND HAS NOT BEEN SERVED TO IT TILL DATE. IT IS ALSO SUBMITTED THAT PROVISIONS OF SECTION 200A OF THE ACT WAS AMENDED ONLY W.E.F. 1.6.2015, WHEREBY LEVY OF FEES U/S. 234E WHILE PRO CESSING RETURN WAS AUTHORIS ED. ACCORDINGLY, THE ASSESSEE HAS SUBMITTED THAT IT HAS CHOSEN TO PREFER THE APPEAL AFTER THE AMENDMENT. IN OUR VIEW, THE EXPLANATION S FURNISHED BY THE ASSESSEE APPEAR TO BE REASONABLE. IT IS QUITE POSSIBLE THAT THE ASSESSEE CO ULD HAVE WAITED FOR SERVICE OF DEMAND NOTICE. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE IMPUGNED APPE ALS BEFORE THE LEARNED CIT(A). HOTEL GURUDEVPRASAD PVT. LTD 3 5. S INCE THE LEARNED CIT(A) HAS NOT ADJUDICATED THE ISSUES ON MERIT S , WE ARE OF THE VIEW THAT THESE APPEALS ARE R EQUIRED TO BE RESTORED TO HIS FILE FOR ADJUDICATING THE ISSUES ON MERIT. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) IN ALL APPEALS UNDER CONSIDERATION AND RESTORE ALL THE ISSUES CONTESTED BY THE ASSESSEE TO HIS FILE FOR EXAMINING THEM AFRESH. 6 . IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 31 . 10 .201 8 . SD/ - SD/ - (AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBE R ACCOUNTANT MEMBER MUMBAI ; DATED : 31 / 10 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUAR D FILE. BY ORDER, //TRUE COPY// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI