M/s. Niranjan Rice Exports P.Ltd, Jalandhar V. The Income-tax Officer, Jalandhar

ITA 493/ASR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89835 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 28-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Assessee Lawyers: J S BHASIN
• Keywords: Reasonable cause
• Section: 194C; 201(1)

Judgement Text

I.T.A. NOS. 493, 494, 495 AND 496/ASR/2014 ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 AND 2010 -11 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR [CORAM:PRAMOD KUMAR AM AND A.D. JAIN JM] I.T.A. NOS. 493, 494, 495 & 496/ASR/2014 ASSESSMENT YEARS: 2007-08, 2008-09, 2009-10 & 2010- 11 M/S. NARANJAN RICE EXPORTS P. LTD., ..APPE LLANT ANANTPUR ROAD, SURANUSSI, JALANDHAR [PAN:AAACN 7742 D ] VS. INCOME-TAX OFFICER (TDS)-I, RESPONDENT JALANDHAR APPEARANCES BY: J.S. BHASIN FOR THE APPELLANT TARSEM LAL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 04, 2015 DATE OF PRONOUNCING THE ORDER : JUNE 10, 2015 O R D E R PER PRAMOD KUMAR: 1. THESE FOUR APPEALS, FILED BY THE ASSESSEE, PERT AIN TO THE SAME ASSESSEE, INVOLVE A COMMON ISSUE AND ARISE OUT OF S IMILAR SET OF FACTS. ALL THE FOUR APPEALS, THEREFORE, ARE BEING DISPOSED OF BY W AY OF THIS CONSOLIDATED ORDER. 2. THE APPEALS ARE TIME BARRED BY 283 DAYS BUT THE ASSESSEE HAS PRAYED THAT THE DELAY BE CONDONED AS THERE WAS, ACCORDING TO THE ASSESSEE, SUFFICIENT CAUSE FOR DELAYED FILING OF THESE APPEAL S. THE CONDONATION PETITION SETS OUT THIS PRAYER AS FOLLOWS : I.T.A. NOS. 493, 494, 495 AND 496/ASR/2014 ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 AND 2010 -11 PAGE 2 OF 4 ENCLOSED KINDLY FIND HEREWITH FOUR INCOME TAX APPE ALS OF THE ABOVE ASSESSEE, THEREBY BRINGING IN DISPUTE, THE ORDER OF C.I.T(A) JALANDHAR DATED 13-08-2013 PASSED U/S. 250(6). THE SAID ORDER HAVI NG BEEN RECEIVED BY THE ASSESSEE ON 19.08.2013, THE APPEAL COULD HAVE BEEN FILED LATEST UPTO 17.10.2013. HOWEVER, WITH THE FILING OF APPEAL TODA Y I.E. 28.07.2014, THERE IS DELAY OF 283 DAYS IN FILING OF THE ENCLOSED APPEAL. NOW THE ASSESSEE HEREIN, HUMBLY SEEKS THIS DELAY TO BE CONDONED BY THE HONB LE BENCH, IN APPRECIATION OF THE REASONABLE CAUSE WHICH PREVEN TED FILING OF APPEAL IN TIME, AS IS EXPLAINED IN THE ENSUING PARAS: 1. THE MAJOR DISPUTE INVOLVED, COMMON IN ALL THE FO UR YEARS, IS WHETHER OR NOT, THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURC E ON PAYMENT OF RAIL FREIGHT MADE TO RAILWAY OPERATORS I.E. CONCUR INDIA AND HIN D TERMINALS, IN TERMS OF SECTION 194C OF IT ACT, 1961. BESIDES THIS, ANOTHER DISPUTE, SMALL IN QUANTUM, IS WHETHER PAYMENT MADE TO A PRIVATE CONCERN, FOR FUMIGATION OF RICE/PADDY STOCKS, WAS ALSO LIABLE TO TDS. 2. THE ORDERS PASSED BY THE ITO (TDS), JALANDHAR, S IMULTANEOUSLY FOR 4 YEARS I.E, 2007-08 TO 2010-11, HOLDING THE ASSESSEE A DEFAULT U/S 201(1)/201(A), ON ABOVE TWO ACCOUNTS, WERE CONTESTE D IN APPEAL FILED BEFORE THE CIT(APPEAL), JALANDHAR, BY TAKING TWIN STANDS. FIRSTLY, THE ASSESSEE DENIED ITS LIABILITY, ON THE PREMISES THAT RAIL FR EIGHT WAS NOT LIABLE TO TDS IN TERMS OF SUB-CLAUSE(C) TO CLAUSE (IV) OF EXPLANATIO N I TO SECTION 194C. THE ORDER PAYMENT WAS ALSO CONTESTED WHEN IT WAS NOT PU RSUANT TO ANY FORMAL CONTRACT WITH THE PARTY. SECONDLY, THE ASSESSEE ALS O SOUGHT TO BE RELIEVED OF THE BURDEN, IN VIEW OF HONBLE APEX COURT DECISION IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES LTD, WHEN THE PAYEES HAD PAID T HEIR TAXES DUE, INCLUSIVE OF THE ABOVE PAYMENTS, N THE RETURNS FILE D BY THEM. 3. THE LEARNED CIT(A), VIDE HIS ORDER STATED 13-8-2 013, WHILE REJECTING THE ASSESSEES FIRST CONTENTION, ALLOWED THE RELIEF ON THE SECOND CONTENTION, ONLY IN RESPECT OF RAILWAY FREIGHT PAID TO THE ABOVE NAM ED TWO PARTIES. SINCE, THE ASSESSEE GOT SUBSTANTIAL RELIEF, NO FURTHER APPEALS WERE PREFERRED. 4. HOWEVER IN THE RECENT PAST, THE ADDL.CIT(TDS), L UDHIANA, HAS VISITED THE ASSESSEE WITH PENALTY U/S.271C, EQUAL TO THE AM OUNT OF TAX NOT DEDUCTED, VIDE HIS ORDERS DATED 27.06.2014, RECEIVED BY ASSES SEE ON 11.07.2014, IN ALL THE FOUR YEARS IN QUESTION, HOLDING THAT THE RELIEF GIVEN ON ALTERNATIVE PLEA BY THE CIT(A), WOULD NOT ABSOLVE THE ASSESSEE FROM PEN ALTY U/S. 271C, FOR THE DEFAULT COMMITTED U/S. 201. 5. THEREFORE, THE ASSESSEE NOW FEELS AGGRIEVED BY T HE ORDER OF CIT(A) DATED 13.08.2013, FOR NOT HAVING ACCEPTED THE ASSES SEE FIRST CONTENTION THAT I.T.A. NOS. 493, 494, 495 AND 496/ASR/2014 ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 AND 2010 -11 PAGE 3 OF 4 THE TWO PAYMENTS IN DISPUTE, MORE PARTICULARLY THAT OF RAIL FREIGHT WERE NOT LIABLE TO TDS. BE THAT AS IT MAY, WHILE DISPUTING T HE PENALTY ORDER PASSED U/S 271C BEFORE THE CIT(APPEAL), THE ASSESSEE HAS ALSO BEEN ADVISED TO FILE APPEALS BEFORE THE TRIBUNAL AGAINST THE CIT(A)S O RDER DATED 13-08-2013, TO SEEK A MANDATE ON THE MERITS OF ITS CONTENTION REJ ECTED BY CIT(A). IT IS UNDER THESE CIRCUMSTANCES THAT THE ASSESSEE WAS FIRST ADV ISED NOT TO FILE FURTHER APPEALS, BUT NOW UNDER THE CHANGED SCENARIO, IT HAS BEEN ADVISED TO PREFER THE SECOND APPEALS. HENCE A DELAY OF 283 DAYS HAS T HUS BEEN CAUSED. IT BE KINDLY APPRECIATED, THE DELAY IS UNINTENDED, WITHOU T MALAFIDE AND WAS NOT TO BENEFIT THE ASSESSEE IN ANY MANNER. 6. IT IS THEREFORE HUMBLY REQUESTED THAT APPRECIATI NG THE REASONABLE CAUSE, STATED HEREINABOVE, THE DELAY INVOLVED BE KI NDLY CONDONED AND THE APPEAL FILED BE ADMITTED AND ALLOWED TO BE HEARD SO AS TO ADVANCE THE SUBSTANTIAL CAUSE OF JUSTICE, CONSISTENT WITH THE L AW LAID DOWN BY THE HONBLE APEX COURT, IN THE CASE OF COLLECTOR, LAND ACQUISIT ION V MST KATIJI & OTHERS REPORTED IN (1987) 167 ITR 471 (SC) THAT SUFFICIEN T CAUSE SHOULD BE INTERPRETED WITH A VIEW TO DO EVEN HANDED JUSTICE O N MERITS IN PREFERENCE TO APPROACH WHICH SCUTTLES A DECISION ON MERITS. 3. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS COND ONATION PETITION, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. WE HAVE NOTED THAT IT WAS A CONSCIOUS AND WELL C ONSIDERED DECISION OF THE ASSESSEE NOT TO PURSUE THE MATTER IN APPEAL AGA INST THE CIT(A)S ORDER IN THE MATTER OF DEMAND RAISED UNDER SECTION 201(1) AN D 201(1A) R.W.S. 194C OF THE ACT AND THE ONLY REASON WHY THE ASSESSEE HAS NO W PREFERRED THESE APPEALS IS HIS APPREHENSION THAT SUCH A DECISION SH OULD NOT BE PUT AGAINST HIM IN THE PENALTY PROCEEDINGS UNDER SECTION 271C. IN OUR CONSIDERED VIEW, THE APPREHENSIONS ARE ILL CONCEIVED INASMUCH AS THE MERE FACT THAT THE ASSESSEE HAS CHOSEN NOT TO PURSUE LITIGATION AGAINS T PARTIAL CONFIRMATION OF DEMAND UNDER SECTION 201(1) AND 201(1A) R.W.S. 194C , DOES NOT IMPLY THAT THE ASSESSEE WAS INDEED AT FAULT IN NOT DEDUCTING T AX AT SOURCE. LEARNED COUNSEL, HOWEVER, SUBMITS THAT WHATEVER BE THE CORR ECT LEGAL POSITION, THE INCOME TAX AUTHORITIES ARE UNLIKELY TO TAKE ANY OTH ER APPROACH TO THE MATER THAN THE APPROACH THE ASSESSEE IS APPREHENSIVE ABOU T. WHATEVER BE THE MERITS OF THIS CONTENTION, WE DO NOT THINK THAT THE APPREHENSIONS ABOUT THE I.T.A. NOS. 493, 494, 495 AND 496/ASR/2014 ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 AND 2010 -11 PAGE 4 OF 4 CONDUCT OF THE ASSESSEE, IN NOT FILING THESE APPEAL S, BEING MISCONSTRUED AS TACIT ADMISSION OF GUILT, IS A REASON ENOUGH TO CON DONE THE DELAY. OF COURSE, WE MAY HASTEN TO ADD, SUCH AN APPROACH ON THE PART OF ANY JUDICIAL OR QUASI JUDICIAL AUTHORITY, AS THE ASSESSEE IS APPREHENSIVE ABOUT, WILL BE WHOLLY INAPPROPRIATE BUT THE REMEDY, AGAINST SUCH HYPOTHET ICAL EVENTUALITY, LIES ELSEWHERE. WITH THESE OBSERVATIONS, WE REJECT THE C ONDONATION PETITION. 5. IN THE RESULT, THE APPEALS ARE DISMISSED AS TIM E BARRED. PRONOUNCED IN THE OPEN COURT TODAY ON 10 TH DAY OF JUNE, 2015. SD/- SD/- A D JAIN PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 10 TH DAY OF JUNE 2015 *AKS/- COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR