YASH CORPORATION, NAGPUR V. ADDLL. CIT - TDS RG, THANE

ITA 5018/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4227 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Opportunity of being heard; Reasonable cause; TDS; Set aside
• Section: 201; 13; 272A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G ' BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 5018 /MUM. /2018 ( ASSESSMENT YEAR : 20 09 10 ) YASH CORPORATION C/O RAJESH AGARWAL, C.A. 509, SWAMI SAMARTH COMPLEX NR. LAXMI BHAVAN CHOWK GOKULPETH, NAGPUR 440 010 PAN ABLFS8016Q . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX TDS RANGE, THANE . RESPONDENT ASSE SSEE BY : NONE REVENUE BY : SHRI V. VINOD KUMAR DATE OF HEARING 05 . 10 .2020 DATE OF ORDER 08.10.2020 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 15 TH JUNE 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1 , THANE , CONFIRMING P ENALTY IMPOSED OF ` 94,218 UNDER SECTION 272A ( 2 )( K ) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 09 10 . 2 YASH CORPORATION 2. THERE IS A DELAY OF 15 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASON FOR DELAY. AFTER PERUSING THE AVERMENTS MADE IN THE AFFIDAVIT, WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEAL IS DUE TO REASONABLE CAUSE. A CCORDINGLY, CONDONING THE DELAY WE ADMIT THE APPEAL FOR ADJUDICATION ON MERIT. 3. BRIEF FACTS ARE, THE ASSESSEE BEING A DEDUCTOR OF TAX AT SOURCE FOR DIFFERENT QUARTERS OF FINANCIAL YEAR 2008 09, WAS REQUIRED TO FILE STATEMENT OF TAX DEDUCTED AT SOURCE (TDS) IN TERMS OF SECTION 200(3) OF THE ACT. UNDISPUTEDLY, THOUGH, THE ASSESSEE FURNISHED SUCH TDS STATEME NT, HOWEVER, THEY WERE FILED BELATEDLY. THEREFORE, THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 272A(2)(I) OF THE ACT AND ULTIMATELY PASSED AN ORDER UNDER THE SAID PROVISION IMPOSING PENALTY OF ` 94,218 FOR DIFFERENT QUARTERS OF FINANCIAL YEAR 2008 09. THE ASSESSEE CHALLENGED THE PENALTY ORDER SO PASSED BY FILING AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, BY IMPUGNED ORDER, LEARNED COMMISSIONER (APPEALS) CONF IRMED THE PENALTY IMPOSED BY THE ASSESSING OFFI CER. 4. WHEN THE APPEAL W AS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. THERE IS NO APPLICATION SEEKING ADJOURNMENT EITHER. CONSIDERING THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE A SSESSEE AFTER 3 YASH CORPORATION HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, LEARNED COMMISSIONER (APPEALS) HAS DISPOSED OFF THE APPEAL FILED BY THE ASSESSEE EX PARTE. ON A PERUSAL OF THE IMPUGNED ORDER PASSED BY LEARNED COMMISSIONER (APPEALS) IT IS VERY MUCH CLEAR THAT ON THE FIRST DATE OF HEARING I.E., ON 20 TH APRIL 2018, SINCE THE ASSESSEE DID NOT APPEAR OR SOUGHT ANY ADJOURNMENT, LEARNED COMMISSIONER (APPEALS) ADJOURNED THE APPEAL TO 13 TH JUNE 2018. AS ON 13 TH JUNE 201 8 AGAIN N O ONE APPEARED FOR THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) PROCEEDED TO DISPOSE OFF THE APPEAL EX PARTE AND SUSTAINED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. FROM THE AFORESAID FACTS, IT IS VERY MUCH CLEAR THAT ADEQUATE OPPORTUNITY OF B EING HEARD WAS NOT PROVIDED BY LEARNED COMMISSIONER (APPEALS). ONLY , ON THE SECOND DATE OF HEARING HE HAS DISPOSED OFF THE APPEAL EX PARTE WITHOUT PROVIDING ANY FURTHER CHANCE TO THE ASSESSEE. IN OUR CONSIDERED OPINION, PROPER OPPORTUNITY OF HEARING SHOULD HAVE BEEN PROVIDED TO THE ASSESSEE BEFORE DECIDING THE APPEAL EX PARTE. THAT HAVING NOT BEEN DONE BY LEARNED COMMISSIONER (APPEALS), WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER PASSED BY LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER DUE AND PROPER OPPORTUNITY OF BEING HEARD 4 YASH CORPORATION TO THE ASSESSEE. FURTHER , WE DIRECT THE ASSESSEE TO MAKE TIMELY COMPLIANCE TO THE NOTICE OF HEARING TO BE ISSUED BY LEARNED COMMISSIONER (APPEALS). WITH THE AFORESAID OBSERVATIONS , GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED THROUGH NOTICE BOARD UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, ON 08.10.2020 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI