The District Mining Officer, Shajapur V. ITO (TDS), Ujjain

ITA 48/Ind/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3152 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: S S DESHPANDE
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay; TDS; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.42 TO 49/IND/2019 ASSESSMENT YEARS: 2009-10 TO 2012-13 THE DISTRICT MINNING OFFICER, SHAJAPUR (M.P.) / VS. ITO, TDS UJJAIN ( APPELLANT ) ( RE VENUE ) T AN: BPLM08278E APPELLANT BY SHRI S.S. DESHPANDE, CA RE VENUE BY SHRI K.G. GOYAL, SR. DR DATE OF HEARING: 25.11.2019 DATE OF PRONOUNCEMENT: 28 .11.2019 / O R D E R PER BENCH : THE ABOVE BUNCH OF CAPTIONED APPEALS FILED AT THE I NSTANCE OF ASSESSEE FOR A.YS. 2009-10 TO 2012-13 ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS), U JJAIN, (IN SHORT CIT(A)), DATED 17.01.2017, 02.01.2017, 17,02.2017 , 13.01.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 206C(6A)/206 C(7) & THE DISTRICT MINING OFFICER . ITANOS.42 TO 49/IND/2019 2 272A(2)(K)) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED BY ITO-TDS-UJJAIN. 2. REGISTRY HAS INFORMED THAT THESE BUNCH OF EIGHT APPEALS ARE TIME BARRED BY 1 (ONE) YEAR, 10 MONTHS & 31 DAYS. APPLIC ATION FOR CONDONATION OF DELAY ALONG WITH THE AFFIDAVIT IS PL ACED ON RECORD. IN THE AFFIDAVIT ASSESSEE HAS MENTIONED THAT THE IMPUG NED ORDER OF LD. CIT(A) WAS RECEIVED BY THE OFFICE CLERK ON 20.02.20 17 BUT INADVERTENTLY HE DID NOT INFORM THE CONCERNED OFFIC ER ABOUT IT AND LEFT IT UNATTENDED WITH OTHER OFFICE RECORDS. IT WA S ONLY WHEN THE INCOME TAX DEPARTMENT APPROACHED THE ASSESSEE FOR R ECOVERY OF DEMAND, IT CAME TO KNOWLEDGE THAT LD. CIT(A) HAS AL READY DISMISSED THE ASSESSEES APPEALS FOR NON-APPEARANCE . IMMEDIATELY, THEREAFTER THE APPEALS HAVE FILED BEFORE THE HON'BL E TRIBUNAL. 3. WE HAVE PERUSED THE CONDONATION APPLICATION AND AFFIDAVIT AND FIND MERIT IN THE CONTENTIONS MADE THEREIN & REASON FOR DELAY SEEMS TO BE REASONABLE. LOOKING TO THE FACT THAT THE ASSE SSEE IS A STATE GOVERNMENT RUNS ENTERPRISE AND SINCE THE IMPUGNED O RDERS OF LD. CIT(A) ARE EX-PARTE ORDER AND NOTHING ON MERITS HAS BEEN ADJUDICATED, WE IN THE LARGER INTEREST OF JUSTICE C ONDONE THE DELAY AND ADMIT ALL THESE EIGHT APPEALS FOR ADJUDICATION. 4. THE INSTANT APPEALS ARE AGAINST THE LEVY OF PENA LTY U/S 272A(2)(K) & 206C(6A)/206C(7) FOR A.YS. 2008-09 TO 2012-13 FOR DEFAULT FOR NON FILING OF TCS STATEMENTS RELATING T O TAX COLLECTED AT THE DISTRICT MINING OFFICER . ITANOS.42 TO 49/IND/2019 3 SOURCE. FOR THE SAKE OF CONVENIENCE THE PENALTY AMO UNTS FOR EACH OF THE FOUR ASSESSMENT YEARS UNDER BOTH THE PROVISIONS U/S 272A(2)(K) & 206C(6A)/206C(7) ARE MENTIONED BELOW: A.Y. PENALTY U/S272A(2)(K) 206C(6A) TAX DEDUCTED PAYABLE 2009 - 10 20,560 8670 20,560 2010 - 11 2,10,290 1,01,430 2,97,523 2011 - 12 16,750 3,910 16,750 2012 - 13 52,460 5670 52,460 5. GROUNDS OF APPEAL RAISED ARE COMMON FOR ALL THE YEARS WHICH APART FROM CHALLENGING THE LEVY OF PENALTY ALSO CLA IMS THAT THERE WAS A REASONABLE CAUSE FOR LATE FILING OF TCS RETURNS. 6. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE REQU ESTED FOR GRANTING ONE MORE OPPORTUNITY OF BEING HEARD BEFORE THE LD. CIT(A) SO THAT NECESSARY SUBMISSIONS CAN BE MADE BEFORE THE LD. CI T(A) RELATING TO REASONABLE CAUSE FOR DELAY IN FILING THE RETURNS AND ALSO TO CONTEND THAT NO PENALTY LEVIED U/S 272A(2)(K). 7. LD. DEPARTMENT REPRESENTATIVE(DR) OPPOSED THE RE QUEST MADE BY THE LD. COUNSEL FOR THE ASSESSEE SUBMITTING THAT MU LTIPLE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE BY THE LD. CIT(A) WHICH REMAIN UNATTENDED. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. COMMON ISSUE RAISED IN ALL THESE 8(EIGHT ) APPEALS RELATES TO LEVY OF PENALTY U/S 272A(2)(K) & 206C(6A)/206C(7 ) FOR A.YS. 2009-10 TO 2012-13. WE OBSERVE THAT IMPUGNED ORDERS OF LD. THE DISTRICT MINING OFFICER . ITANOS.42 TO 49/IND/2019 4 CIT(A), EX-PARTE ORDERS AND THERE IS NO FINDING OF MERITS OF THE CA SE. LD. CIT(A) HAS NOWHERE ADJUDICATED THE ISSUE OF PEN ALTY LEVIED BY THE LD. AO. IN THESE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE OF THE VIEW THAT THE ISSUES RAISED IN ALL THESE APPEALS RELATING TO LEVY OF PENALTY U/S 272A(2)(K) & 206C(6A)/206C(7), NEEDS TO BE RESTORED TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION ON MERITS OF THE CASE AND FOR PASSING A SPEAKING ORDER. NEEDLESS TO MENTION THAT PROPER OPPORTUNITY OF BEING HEARD TO BE PROVIDED TO THE AS SESSEE. 9. IN THE RESULT, THE FINDING OF LD. CIT(A) ARE SET ASIDE AND ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES AS PER TERMS INDICATED ABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 .11.2 019. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 28 /11/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR