Appeal details
Counselvise Citation
[2021] 104 COUNSELVISE.COM (IT) 8003 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 7 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
22-11-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
-
Assessment Year
2018-2019
Appeal Filed On
15-07-2021
Judgement Text
IN
THE
INCOME
TAX
APPELLATE
TRIBUNAL
AGRA BENCH: AGRA
BEFORE
SHRI
LALIET
KUMAR,
JUDICIAL
MEMBER
AND
DR.
MITHA
LAL
MEENA,
ACCOUNTANT
MEMBER
LT.A No. 54/AGR/2021
(ASSESSMENT YEAR: 2018-19)
Vs. CIT Circle-2 (1)(1)
Agra
Agro
Private
Limited
Anjana
Cinema,
3/2
D.M.G.
Road
Agra U.P.
Agra U.P. 282007
PAN: AAGCA8595F
(Assessee)
(Revenue)
Assessee
by
Sh.
K.K.
Jain,
Adv.
Revenue
by |
WaseemArshad,
Sr.
DR
Date of Hearing_
Date of Pronouncement
|14.10.2021
23.11.2021
ORDER
PerBench:
This
appeal
is
filed
against
the
Order
u/s
143(1)
of
the
Income
Tax
Act,
1961
(herewinafter
referred
as
'the
Act')
dated
19.05.2019,
assed
by
the
DCIT,
CPC,
Bengaluru.
The appellant filed return of income for the assessment year
2018-19
on
2809-2018
which
was
subsequently
revised
on
30-09-2018
LT.A No. 54/AGR/2021 2
declaringg
total
income of Rs.
26,60,05,400/-
under
the
normal
provisions
of
the
Act
and
book
profit
of Rs. 35,05,03,102/-
under
the
provisions
of
section
115JB.
During
the
year
appellant
hassold
fixed
asset on 07-03-2018. While processing the ITR the CPC Bengaluru charged
interest
u/s
234B
amounting
to Rs.
7,66,824/-
and
u/s
234C
amounting
to
Rs.
29,74,897/-.
Aggrieved
with
the
charging
of
interest
u/s
234C,
the
appellant
has
filed this appeal.
2.2
The appeal was e-filed in Form No-35 on 04-03-2020 accompanied by
statement of facts, groundsof appeal and details of paymentof appeal fee.
2.3
In the statement of facts, it has been submitted that
"The appellant company had no business. However, during the year capital
asset has been sold in the month of March 2018 on which long term capital
gains arise. The liability of advancetax arose only after sale of property in
accordance with the provisions of section207 to 211. The e return was filed
showing normal income of rupees 266005400 and income under section 115JB
of rupees 3 50503 102. The intimation under section 143(1) was received on 3rd
June 2019 determining demand of rupees 37,41,720 which comprises interest
charged under section 234C amounting to rupees 29,74,897 on account of
deferment of payment of advance tax and 234B of rupees 7,66,824. The
appellant had paid the interest charged under section 234B. The interest234C
has also been paid at rupees 88,140 for deferment of last installment of advance
tax. The appellant moved rectification requestbefore CPC for modifying
interest charged under section 234C on 9th June 2019. The said rectification
LT.A No.
54/AGR/2021
3
request was rejected by CPC vide order dated 28th June 2019 but sent on Email
on 21st February 2020 which could be seen on 2nd March 2020. On receipt of
rectification order, it is noticed that CPC has repeated the liabilityas
determined in the intimation under section 143(1). Section 143(1) authorized to
make adjustmentto the returned income in certain cireumstances enumerate
therein. The interest under section 234C is to be charged only for the month of
March as the capital gains arise in the month of March duly reported in ITR.
The present appeal is delayed by 275 days for which condonation application is
being separately moved."
2.4
The
appellant
had
taken
three
grounds
in
the
appeal
which
are
as
under-
2.4
()
Because
the
CPC
has
erred
in
charging
interest
under
section
234C for
first,
second and third quarter as there was no liability to pay advance tax as the capital
gains
arise
in
the month
of
March
2018.
(i)
Because
the
capital
gains
arise
on
the sale
of
asset
in
the
month of
March
2018
the
interest
under
section
234C
is
to
be
charged
only
for
the
month
of
March
as
per
the
provisions
of
section
207 to
211.
(ii)
Because the appellant craves leave to add, modified, subtract any grounds
of appeal at the time hearing.
2.5
In
appeal
memo
appellant
has
submitted the
condonation
of
delay
in
the
column
no
15,
which is
reproduced
here
under:
4
LT.A No. 54/AGR/2021
"THE
APPELLANT
EARNED
INCOME
FROM
CAPITAL
GAINS
IN
MARCH
2018
THEREFORE
THE
ADVANCE
TAX
LIABILITY
AROSE
ONLY
IN
MARCH.
THE
RETURN
WAS
PROCESSED
ON
17
MAY
2019
CHARGING
INTEREST
US
234C.THE
APPELLANT
INSTEAD
OF
FILING
APPEAL
PREFER
TO
FILE
RECTIFICATION
REQUEST
AT
CPC
ON
9
JUNE
2019.
THE
RECTIFICATION
ORDER
RECEIVED
ON
EMAIL
ON
21
FEB
2020
SEEN
ON
2/3/2020.
THE
APPEAL
FILED
IS
DELAYED
BY
275
DAYS
FOR
WHICH
SEPERATE
APPLICATION
IS
BEING FILED."
3.
During
the
appellate
proceedings
the
appellant
submitted
the
written
submission,
produced
here
under:
"The
appeal
filed
is
delayed
by
275
days
for
which
separate
application
for
condonation
of
delay
has
been
filed
on
5/3/2020
(copy
enclosed)
and
in
view
of
the
facts
and
circumstances
enumerated
therein,
the
delay
may
please
be
condoned
and
appeal
be
entertained.
The
sequence
of
events
in
the
matter is summarized below: -
Date of service
| Date of
order/application
17-05-2019
Event
03-06-2019
Intimation /s 143(1)
Rectification request at CPC
Rectified intimation not
received till 10-02-2020
09-06-2019
Grievance
for not
receiving
10-02-2020
Rectified
order
dated
28-06-
I.T.A No, 54/AGR/2021
5
rectified
intimation
2019 sent on email on 21-
02-2020
2020
seen on 02-03-
Appeal filec
04-03-2020
In
brief
the
appellant
after
having
knowledge
on
02-03-2020
about
passing
of
order
u/s
154
on
28-06-2019
and
sent
on
email
on
21-02-2020
immediately
thereafter
without
any
loss
of
time,
against
the
intimation
dated
17-05-2019
served
on
03-062019
has
filed
the
present
appeal
on
04-03-2020
which
clearly
show
the
due
diligence
of
the
appellant
in
filing
appeal.
The
delay
in
service
of
the
rectified
order
is
not
attributable
to
the
appellant.
On
identical
facts
Hon'ble
Allahabad
High
Court
in
Subhash
Malik
vs
CIT
[2010)
3251
TR
243
(AlI)
has
condoned
the
delay
in
filing
appeal.
Copy
of
order
is
placed
in
paper
book.
On
the
facts
and
circumstances
the
delay
of
275
days
with
no
malafide
intention
for
the
cause
of
delay
and
was
not
deliberate
as
a
dilatorytactic.
The
cause
of
justice
will
suffer
in
case
the
delay
is
not
condoned.
Your
good
self
has
been
vested
with
inherent
powers
to
condone
the
delay
under
sub
section
(3)
of
section
249
of
the
Act
where
delay
has
occurred
due
to
sufficient
and
reasonable
cause.
In
the
present
matter
the
delay
is
occurred
due
to
sufficient
and
reasonable
cause
as
explained
herein
before
which
may
please
be
condone."
4.
On
perusal
of
Form-35,
it
is
seen
that
the
Order
/s
143(1)
dated
17-05-
2019
was
served
upon
the
assessee
on
03-06-2019,
while
the
appeal
was
filed
on
6
L.T.A No. 54/AGR/2021
04-032020,
which
is
beyond
the
statutory
time
limit
provided
for
filing
of
the
appeal.
As
per
Section
249(2%c)
the
appeal
shall
be
presented
within
30
days
of
the
following
date
on
which
the
intimation
of
the
order
sought
to
be
appealed
against is served.
For
the
sake
of
clarity
relevant
provision
of
section
249
of
the
Income-tax
5.
Act,1961
in
respect
of
appeal
to
the
CIT(A)
and
limitation,
is
reproduced
here
under
249.
(1)
Every
appeal
under
this
Chapter
shall
be in
the
prescribed
form
and
shall
be
verified
in
the
prescribed
manner
and
shall,
in
case
of
an
appeal
made to
the
Commissioner
(Appeals)
on or
after
the
1st
day
of
October,
1998,
irrespective
of
the
date
of
initiation
of
the
assessment
proceedings
relating
thereto
be
accompanied
by
a
fee
of,-
where
the
total
income of
the
assessee as
computed
by
the
Assessing
Officer
in
the
case
to
which
the
appeal
relates
is
one
hundred
thousand rupees or less, two hundred fifty rupees;
where
the
total
income
of
the
assessee,
computed
as
aforesaid,
in
the
case
(iv)
to
which
the
appeal
relates
is
more
than
one hundred
thousand
rupees
but
not
more than two hundred thousand rupees, five hundred rupees;
L.T.A No. 54/AGR/2021 7
(where
the
total income of the
assessee,
computed
as
aforesaid,
in the
case
to
which the appeal relates is more than two hundred thousand rupees. one thousand
rupees
(vi)where the subject matter of an appeal is not covered under clauses ().
and (ii), two hundred fifty rupees.
(2)
The
appeal
shall
be
presented
within
thirty
days
of the
following
date,
that is
to say,
(a)where the appeal is under section 248, the date of payment of the tax, or
(b)where the appeal relates to any assessment or penalty, the date of service of
the notice of demand relating to the assessment or penalty:
Provided that, where an application has been made under section 146 for
reopening an assessment, the period from the date on which the application is
made to the date on which the order passed on the application is served on the
assessee shall be excluded, on
(c) in any other case, the date on which intimation of the order sought to be
appealed against is served.
(2A) Notwithstandinganything contained in sub-section (2), where an order has
been made under section 201 on or after the Ist day of October, 1998 but before
the lst day of June, 2000 and the assessee in default has not presented any appeal
within the time specified in that sub-section, he may present such appeal before
the 1st day of July, 2000.
L.TA No. 54/AGR/2021
8
(3)
The
Commissioner
(Appeals)
may
admit
an
appeal
after
the
expiration
of
the
said
period
if
he
is
satisfied
that
the
appellant
had
sufficient
cause
for
notpresenting
it
within that
period.
(4)
No
appeal
under
this
Chapter
shall
be
admitted
unless
at
the
time
of
filing
of
the appeal-
(a)
where
a
return
has
been
filed
by
the
assessee,
the
assessee
has
paid
the
tax
due
on
the
income
returned
by
him;
or
(b)
where
no
return
has
been
filed
by
the assessee,
the
assessee
has
paid
an
amount
equal
to
the
amount
of
advance
tax
which
was
payable
by
him:
Provided
that,
in
a
case
falling
under
clause
(b)
and]
on
an
application
made
by
the
appellant
in
this
behalf,
the
Commissioner
(Appeals)
may,
for
any
good
and
sufficient
reason
to
be
recorded
in
writing,
exempt
him
from
the
operation
of
the
provisions
of
that
clause."
6.
In
the
instant
case,
the
appellant
filed
the
appeal
against
the
Order
u/s
143(1)
of
the
Act,
which
was
served
upon
him
on
03-06-2019.
The
appeal
was
required
to
be
filed
within
30
days
i.e.
by
04-07-2019.
However,
it
was
belatedly
filed
on
04-032020.
It
is
seen
from
columns
14
&
15
of
the
appeal
filed
and
submission
made
that
it
is
due
to
late
receiving
of
order
u/s
154
of
the
Act.
7.1
Further,
the
provisions
of
Section
249(3)
lay
down
that
an
appeal may
7.1
be
admitted
after
the expiration
of
the
said
period,
if
the
CIT(A)
is
satisfied
LT.A No. 54/AGR/2021|
9
that
the
appellant
had
sufficient
cause
for
not
presenting
the
appeal
within
that
period.
In
this
case
the
appellant
should
have
filed
the
appeal
against
order
u/s
143(1)
by
03-072019
within
30
thirty
days
of
receipt
of
order
under
reference.
If
appellant
has
filed
rectification
petition
against
the
order
u/s
143(1)
and
if
said
rectification
order
has
been
received
then
if
any
appeal
was
required
then
should
have
been
filed
against
the
order
u/s
154
of
the
Act
and
not
against
the
order
u/s
143(1)
of
the
Act.
As
such
it
cannot
be
said
as
sufficient
cause
for
delay
in
filling
of
appeal.
Under
the
circumstances
it
is
admitted
fact
that
the
appellant
did
not
comply
with
the
provisions
of
Sec.
249
pertaining
to
the
procedure
for
filing
of
an
appeal,
the
appeal
filed
on
0403-2020
is
held
to
be
not
maintainable.
The
appellant
has
placed
his
reliance
in
the
case
of
decision
of
honorable
High
Court
of
Allahabad
in
Subhash
Malik
V/s
CIT
(2010)
325
ITR
347.
The
facts
of
the
case
are
not
the
same
as
per
facts
of
the
present
case
being
in
the
said
case,
the
counsel
has
advised
to
take
up
the
matter
before
CIT(
Appeal)
to
get
the
order
rectified
u/s
154
of
the
Act.
However,
in
this
case
there
is
no
such
facts.
Therefore,
the
ratio
of
this
case
law is
not
applicable
to
the
present
case.
In
the
case
of
Senior
Bhosale
Estate
(HUF)
Vs
Assistant
Commissioner
of
Income
Tax,
the
Hon'ble
Apex
Court
allowed
the
condonation
of
delay
in
filing
the
concerned
appeal
pronouncing
the
principles
behind
condoning
the
delay
in
LT.A No. 54/AGR/2021
10
filing
appeals
before
the
Courts
by
applying
section
5
of
the
Limitation
Act,
1963.
The
Hon'ble
Apex
Court
is
of
the
view
that
the
law
of
limitation
is
founded
on
public
policy.
The
idea
behind
the
law
of
limitation
is
not
destroy
the
rights
of
the
parties
but
to
ensure
that
they
do
not
resort
to
dilatory
tactics
and
seek
remedy
without
delay.
The
objection
of
the
law
of
limitation
is
to
keep
alive
the
legal
remedy
with
in
a prescribed
limited
time
but
does
not
restrict
courts
to
condone
the
delay
in
the
interest
of
justice.
There
are
certain
genuine
grounds
which
the
courts
may
consider
for
the
condonation
of
delay
in
cases
where
Appeals
are
filed
after
the
expiry
of
period
as
laid
down
under
the
limitation
Act,
1963.
In
the
case
of
condonation
of
delay
where
the
appeal
was
filed
beyond
the
limitation
of
period,
the
courts
are
empowered
to
condone
the
delay,
provided
that
the
Appellant
can
prove
his
claim
of
inability
to
file
the
appeal
within
the
prescribed
period.
Litigant
must
be
able
to
demonstrate
that
there
was
"Sufficient
Cause"
which
obstructs
his
action
to
file
appeal
in
the
prescribed
time
limit.
Courts
have
also
held
that
the
expression
"Sufficient
Cause"
shall
receive
liberal
consideration
for
the
sake
of
justice.
Thus,
the
condonation
of
delay
is
not
automatic
but
is
based
upon
on
the
facts
of
the
case.
Courts
while condoning
delays
in
filing
appeals
have
power
to
examine
the
case
and
after
ascertain
the
facts
if
delay
was
due
to
"Sufficient
Cause"
may
condone the delay.
11
I.T.A No. 54/AGR/2021
6.
Considering
the
above
discussion
and
facts,
the
appeal
filed
is
not
in
conformity
with
the
provisions
of
Sec
249(2)
of
the
Act,
and
there
is
no
sufficient
cause
for
condonation
of
the
delay
in
filing
of
the
appeal,
the
present
appeal
is
dismissed as
not
maintainable.
Thus,
the
appeal
filed
by
the
appellant
is
dismissed
as
not
maintainable.
SYNOPSIS
Brief facts
1.
The
'appellant
is
a
Private
Limited
Company
and
had
no
business
since
last
severalyears.
During
the
year
under
consideration
immovable
property
bearing
number
3/2D
Khasra
No.513
Mauja
Lashkarpur,
M.G.
Road,
Agra
along
with
depreciable
assets
was
sold
through
Sale
Deed(Page
No.82
to
98)
Registered
on
7.3.2018
(A.Y
2018-19)
for
a
consideration
of
Rs.35,25,00,000/-.
The
breakup
of
sale
consideration
is
as
under:-
Land
Building Plant & Total
Nature of
asset
Machinery
sold
31,17,40,000
Non Depreciable 31,17,40,000
3,97,60,000 10,00,000 4,07,60,000
Depreciable Assets
Total
B1,17,40,000
3,97,60,000
10,00,000
35,25,00,000|
12
I.T.A No. 54/AGR/2021
On
Condonation
of
Delay
(Ground
No.1)
2
For
the
disposal
of
Ground
No.1,
it is
considered
expedient
to
invite
the
kind
attention
ofthe
Hon'ble
Bench
to
the
sequence
of
events
which
are
tabulated
below
Date
of PBP
Date
Event
service
18-51
30.09.2018|
Return of Income filed
under
17.05.2019| 03.06.2019 by64-68
The said Return stood processed
Post
section 143(1) of the Act and'Original' Intimation
issued
69
09.06.2019
Upon receipt
of Original Intimation
Rectification
Application
filed at
CPC
for
rectifying
interestexcessively/wrongly
charged
under
section
234C
of
the Act
70
Since
unheard.
Grievance
filed
at
CPC
for
not
receiving
10.02.2020|
Rectified Intimation'
CPC alleges
having
issued 'Revised
28.06.2019
Intimation. However, no such 'Revised Intimation' was|
In response to the Grievance filed at CPC,
21.02.2020| 21.02.2020
71-
5
Rectified
Intimation
sent on registerede
mail for the first time to the appellant.
Rectified Intimation seen on e-mail giving rise to 02.03.2020|
present appeal
Assessee
being
unsuccessful in
04.03.2020
Rectification proceedings as conveyed vide
11-
Application
for
condonation
of
delay
filed
beforel05.03.2020
4
CIT(A)
13
LT.A No. 54/AGR/2021
From
the
sequence
of
events
as
tabulated
above
your
good
self
may
be
kind
3.
toappreciate
that
the appellant.
after
receipt
of
'Intimation'
on
03.06.2019,
acted promptly
filed application
under
section
154
of
the
'Act'
on
09.06.2019
and
hearing
no
response
from
the
CPC
for
long
also
raised
grievance
on
10.02.2020
in
response
to
which
the 'appellant'
was
informed
that
CPC
had
already
raised
'Rectified
Intimation'
on
28.06.2019.
4.
'Appellant'
affirms
that
the
so-called
'Rectified
Intimation
'never
reached/served
on
the
'appellant'
on
28.06.2019
or
on
any
date
near
to
this
date.
The
'Rectified
Intimation'
for
thefirst
time
was
sent
on
e-mail
on
21.02.2020
and
which
was
seen
by
the
'appellant'
on
02.03.2020.
Therefore,
as
such
the
cause
of
grievance
arose
either
on
21.02.2020
or
on
02.03.2020
against
which
Appeal
was
filed
on
04.03.2020
well
within
30
days'.
5.
'Appellant'
affirms
that
'Revised
Intimation'
was
never
served
on
the
date
of
28.06.2019
or
on
any
date
near
to
such
date
either
by
Post
or
by
e-mail.
'Appellant'
furnishes
herewith
Affidavit
of
the
Managing
Director
of
the
'Appellant'
Company
in order to establish its case.
.
That
since
in
the
case
of
'appellant
mistake
pertains
to
excess/wrong
charging
of
Interest
the
'appellant'
upon
being
so advised,
was
pursuing
alternate
remedy
provided
under
the
Income
Tax
Act
by
virtue
of
Section
154
of
the
Act'
therefore,
complete
period
starting
from
09.06.2019 to
02.03.2020
deserves
to be
condoned
as
the
'appellant'
was
pursuing
alternate
remedy
for
deletion of disputed demand.
I.TA No. 54/AGR/2021
14
7
The
alleged
delay
in
service
of
'Rectified
Intimation'
from
28.06.2019
to
02.03.2020
cannot
be
attributed
to
the 'appellant'
as
no
such
'Rectified
Intimation'
ever
got
served
upon
the
appellant'
either
by
Post
or
by
e-mail.
Thus,
there
was
no
mala
fide
or
deliberate
delay
as
a
dilatory
tactic
in
filing
the
appeal
delayed
by
275
days.
As
per
section
249(3),
the
CIT(A)
may
admit
an
appeal
after
the
8.
expiration
of
prescribed
period
if
he
is
satisfied
that
the
appellant
had
sufficient
cause
for
not presenting
it
within
that
period.
The
power
of
condonation
is
expected
to
be
exercised liberally
so
as
to
advance
the
cause
of
justice.
9.
The
'appellant'
had
placed
reliance
on
various
decisions
for
condonation
of
delay
before
CIT(A)
NFAC
but
the
same
were
not
discussed
much
less
distinguished.
'NFAC'
has
only
discussed
the Judgment
of
Hon'ble
Allahabad
High
Court
in
Subhash
Malik
vs
CIT
[2010]
325
ITR
243
(All)
(Page
No.60
to
65)
and
has
distinguished
it
too
on
flimsy
ground,placing
reliance
on
hyper
technical
consideration
mentioned
in
Para
7.1
of
the
impugned
order
(Page
No.8
of appeal memo) as under:
The
facts
of
the
case
are
not
the
same
as
per
facts
of
the
present
case
being
the
said
case,
the
counsel
has
advised
to
take
up
the
matter
before CIT(Appeal)
to
get
the
order
rectified
u/s
154
of
the
Act.
However,
in
this
case
there
are
no
such
facts.
Therefore,
the
ratio
of
this
case
law
is
not
applicable
to
the
present
case."
LT.A No. 54/AGR/2021|
15
In
the
case
of
Subhash
Malik
(supra)
the
facts
of
the
case
were
that
the
10.
Assessment
orderunder
section
144
was
passed
by
the
ITO
by
an
order
dated
5-
3-2002.
The
assessee
filed
an
appeal
on
08.04.2002
before
the
Commissioner
(Appeals).
The
said
appeal
was
dismissed
by
the
Commissioner
(Appeals)
by
an
order
dated
25.09.2002
and
the
said
order
was
served
upon
the
assessee
on
18.11.2002.
An
application
under
section
154
for
the
rectification
of
the
order
dated
25.09.2002
was
filed
on
23.12.2002
but
the
same
was rejected
by
the
Commissioner
(Appeals)
by
an
order
dated
20.10.2003.
The
said
order
dated
20.10.2003
was
served
on
the
assessee
on
25.11.2003,
thereafter
the
assessee
filed
an
appeal
on
28.11.2003
after
a
delay
of
279
days
before
the
Tribunal
against
the
order
dated
25.09.2002
passed
by
the
Commissioner (Appeals).
The
said
appeal
was
dismissed
by
the
Tribunal
as
barred
by
limitation.
The
Hon'ble
High
Court
reversed
the
order
passed
by
the
ITAT
holding
that
"/t
was
also
noteworthy
that
an application
under
section
154
was
filed
against
the
order
dated
25.09.2002
well
within
time.
There
was
no
reason
to
disbelieve
the
contention
of
the
assessee.
that
he
as
advised
by
his
counsel
to
file
an
application
under
section
154
for
the
rectification
of
the
order
dated
25.09.2002
and
the
pendency
of
the
said
application
had
caused
the
delay
in
filing
the
appeal
before
the
Tribunal.
'
The
Hon'ble
High
Court
further
held
that"
It
has
been
consistently
held
by
the
Apex
Court
that
in
matter
of
condonation
of
delay
a
liberal
and
pragmatic
view
should
be
taken.
The
Apex
Court
in
Ramji
Dass
v.
Mohan
Singh
ARC
1978
Page
496
has
held
thatas
far as
possible
Court's
discretion
should
be
exercised
in
favour
of
the
hearing
and
not
to
shut
out
hearing"
and
while
allowing
the
appeal
held
"Thus,
while
deciding
LTA No. 54/AGR/2021
16
such
an
application
justice
oriented
approach
is
required
to
be adopted."
The
Hon'ble
Jurisdictional
High
Court
while
arriving
at
the
above
view
referred
and
relied
upon
the
Judgement
delivered
in
the
case
of
'Bharat
Auto
Centre
v.
CIT
(2005)
149
Taxman
228
(All.)
in
which
matter
too
while dealing
with
the
similar
situation
the
Hon'ble
High
Court
held
that
where
the
delay
in
filing
the
appeal
before
the
Commissioner
of
Income-tax
(Appeals)
was
caused
due
to
the
pendency
of
the
application
under
section
154
of
the
Act
the
delay
is
condonable.
11.
The
facts
of
Subhash
Malik's
case
are
summarized
below:-
Date
Event
05.03.2002
Order
passed
u/s
143(3)
Appeal
filed
before
CIT(A)
Appeal
dismissed
by
CIT(A)
Service of order
Application
u/s
154
filed
before
CIT(A)
Application
rejected
by
CIT(A)
Service
of
order
u/s
154
of
CIT(A)
Appeal
filed
before
ITAT
against
the
order
dated
28.11.2003
08.04.2002
25.09.2002
18.11.2002
23.12.2002
20.10.2003
25.11.2003
18/11/2002
with
delay
of
279
days
Appeal
dismissed
by
ITAT
08.07.2005
Delay
condoned
by
Hon'ble
High
Court
vide
order
dated
10.07.2009
The
following
decisions
on
the
issue
are
relevant
and
may
please
be
considered:-
17
LT.A No. 54/AGR/2021
12.1
167
ITR
471(SC)Collecotr,
Land
Acquisition
vsMst.Qatiji&
Other
(page
No.105
to
108
of
paper
book)
It
has
been
held
that
when
substantial
justice
and
technical
consideration
are
pitted
against
each
other,
the
cause
of
substantial
justice
deserves
to
be
preferred,
the
other
side
cannot
claim
to
have
vested
right
in
injustice
being
done
because
of
non
deliberate
delay.
There
is
no presumption
that
delay
isoccasioned
deliberately
or
on
account
of
culpable
negligence
or
on
a
malafide.
The
litigation
does
not
stand
to
benefit
by
resorting
to
delay,
in
fact
he
is
on
serious
risk.
12.2
Improvement
Trust
vs.
Uijaqar
Singh
(Supreme
Court)
CIVIL
APPEAL
NOS.
2395
of
2008
dated
26.06.2010
(Page
No.109 to
122
of
paper
book)
Unless
mala
fides
are
writ
large.
delay
should
be
condoned.
Matters
should be
disposed
of
on
merits
and
not
technicalities.
12.3
431
ITR
148
(Del)
HL
Malhotra&
Co.
Pvt.
Ltd.
Vs
DCIT(page
No.123
to 128 of paper book) (Relevant Para 16)
It
was
held
that
in
absence
of
anything
male
fide
or
deliberate
delay
as
a
dilatory
tactic,
the
Court should
normally
condone
the
delay
as the
intent
is
always
to
promote
substantial
justice
following
the
Hon'ble
Supreme
Court
decisions in the case of Collector, Land Acquisition, Anantnag&Anr. VsMst.
Katiji and others (1987) 2 SCC 107 and N. Balakrishnan Vs M. Krishnamurthy
1998 (7) SCC 123.
L.T.A No. 54/AGR/2021
18
12.4
ITA
No.2494/Mum/2018
Shri
NibeshJabarmalChandanivs
1TO
order
dated
28.11.2018
(Page
No.l129
to
135
of
paper
book)
(Para
6)
"Nevertheless,
a
liberal
approach
has
to
be
adopted
by
the
appellate
authorities
where
delay
has
occurred
for
bona
fide
reasons
on
the
part
of
the
assessee
or
the
Revenue
in
filing
the
appeals.
In
matters
concerning
the
filing
of
appeals,
in
exercise
of
the
statutory
right,
a
refusal
to
condone
the delay
can
result
in
a
meritorious
matter
being
thrown
out
at
the
threshold,
which
leads
to
miscarriage
of
justice.
The
judiciary
is
respected
not
on
account
of
its
power
to
legalize
injustice
on
technical grounds
but
because
it
is capable
of
removing
injustice
and
is
expected
to
do
so."
In
view
of
the
facts
and
overall
circumstances
of
the
case
the CIT(A)
NFAC
has grossly
erred
in refusing
to
condone
the
delay
of
275
days
which
may
kindly
be
condoned
and
appellant
may
kindly
be
heard
on
merits.
Submissions
on
merits
(Ground
No.2,
3
and4)
13.
These
grounds
relates
to
the
charging
of
excessive
interest
under
section
234C of the Act.
The
appellant
company
had
filed
e-return
declaring
income
of
Rs.26,60,05
400/-
under
normal
provisions
of
the
Act
which
inter
alia
included
only
capital
gains
viz
a
viz
long
term
capital
gains
worked
out
on
sale
of
land
and
short
term
capital
gains
worked
out
on
sale
of
depreciable
assets.
As
the
book
profit
was
more
than
normal income,
the
tax
was
calculated
under
the
LT.A No. 54/AGR/2021
19
provisions
of
section
115JB
on the
book
profit
of
Rs.35,05,03,102/-which
inter
alia
included
profit
on
sale
of
fixed
assets.
Since
the
entire
income
accrued
on
07.03.2018,
therefore,
there
was
no
liability
to
pay
advance
tax
before
07.03.2018.
The
entire
profit
on
sale
of
assets
arisen
on
07.03.2018
could
not
have
been
foreseen
by
the
appellant
so
as
to
enable
it
to
estimate
such
income
for
the
purpose
of
payment
of
advance
tax
on
an
anterior
date.
may
it
be
15.06.2017
or
15.09.2017
or
15.12.2017.
The
appellant
was
thus
not
liable
to
pay
advance
tax
on
or
before
15.6.2017,
15.09.2017
and
15.12.2017
as
the
income
was
not
estimable
at
the
relevant
point
of
time
and
such
event
has
taken
place
after
the
due
dates
of
first,
second
and
third
installments.
The
interest charged
for
the
first,
second
and
third
quarter
is
patently
illegal
and
is
in
unsustainable.
The
interest
could
be
charged
only
for
the
month
of
March
view
of
the
unambiguous
provisions
contained
in
statute
vide
section
207
to
211
of
the
Act.
13.1
The
advance
tax
payable
only
in
the
last
installment
as
per
the
normal
provisions
of
the
Act
at
Rs.6.31
80.751/-
against
which
tax
paid
by
way
of
TDS
and
advance
tax at
Rs.6,59,88,880/-.
Thus
the
tax
paid
in
advance
was
much
more
than
payable
as
per
normal
provisions.
However,
there
is
short
fall
of
advance
tax as
per
the
provisions
of
section
115JB.
The
tax
payable
as
per
the
provisions
of
section
115JB
worked
out
at
Rs.7,48,02,970/-
and
the
short
fall
of
advance tax
for
the
month
of
March
worked out
at
Rs.
88,14,082/-
on
which
interest
u/s
234C
is
leviableat
Rs.88,140/-
only
as
against
Rs.29,74,897/-
charged
while
issuing
intimation u/s
143(1).Thus
the
order passed by CIT(A) NFAC resulted into substantial miscarriage of justice,
LT.A No. 54/AGR/2021
20
greatly
prejudiced
the
cause
of
justice
and
the
appellant
has
been
saddled
with
the
excessive
liability
of
interest
u/s
234C
of
the
Act.
13.2.
The
similar
issue
of
charging
interest
under
section
234C
had
come
up
for
consideration
before
the
Hon'ble
Mumbai
Bench
in
the
case
of
Sidhmicro
Equities
Private
Ltd.
vs
ACIT
(ITA
No.710/Mum/2018)
(Page
No.136
to
142)
order
dated
27/3/2019
wherein
the
Hon'ble
after
due
consideration
of
the
matter
has
held
that
the
assessee
cannot
be
saddled
with
the
liability
of
interest
prior
to
earning
of
income/gain.
The
AO
was
directed
to
work
out
the
interest
under
section
234C
from
the
date
of
accrual
of
capital
gain
only.
The
fact
of
the
appellant's
case
is
identical.
Similar
view
was
adopted
in
the
case
of
ACIT
vs
Jindal
Irrigation
Systems
Ltd.
[56
ITD
164](Hyd.)
(Page
No.147
&
148)
wherein
it
has
been
held
that
an
assessee
could
not
be
defaulted
for
a
duty,
which
was
impossible
to
be
performed.
The
Bench
also
considered
levy
of
interest
u/s
234C
of
the
Act
in
a
situation
where
on
the
relevant
dates
assessee
was
not
in
a
position
to
estimate
receipt
of
such
income.
Again
a
similar
view
has
been
taken
by
the
Hon'ble
Chennai
Bench
of
Tribunal
in
the
case
of
Express
Newspaper
Ltd.
[103
TTJ
122](Chennai)
(Page
No.143
to
146)
and
Hon'ble
Mumbai
Bench
in
the
case
of
Kumari
Kumar
Advanivs
ACIT
(ITA
No.7661/Mum/2013)
(Page
No.148
to
154)
order
dated
13/7/2016.The
Hon'ble
Rajasthan
High
Court
in
CIT
vs
Smt.Premlata
Jalani
[264
ITR
744]
(Page
No.155
to
167)
has
held
that
the
interest
payable
u/s
234C
only
in
respect
of
LT.A No. 54/AGR/2021
21
installmnt
due
after
accrual
of
capital
gains
and
not
on
the
entire
amount
of
tax.
On
consideration
of
the
facts
and provisions
of
law
the
interest
charged
excessively
u/s
234C
needs
to
be
modified
and
may
please
be
direct
the
AO
to modify
it.
2.
The
Ld.DR
for
the
revenue
had
submitted
that
the
assessee
is
not
entitled
for
any
indulgence
from
the
Bench
as
the
assessee
failed
to
file
the
appeal
within
the
statutory
period
as
provided
by
the
Act
and
therefore
the
CIT(A)
was
right
in
disposing
of
the
appeal
without
adjudicate
them
grounds
on
merit.
3.
We
have
considered
the
rival
contention
of
the parties
and perused
the
material
available
on
record,
including
the
judgments
cited
at
bar
during
the
course
of hearing
by
both
the
parties.
4.
As
is
clear
from
the
undisputed
fact
argued
before
us
that
the
assessee
had
preferred
application
under
section
154
before
the
assessing
officer
for
rectification
of
mistake
however
no
order
was
communicated
to
the
assessee
within
the statutory.
The
respondent
on
receipt
of
the
reminder
from
the
assessee,
had
only
provided
the
copy
of
the
order
passed
in
section
154
to
the
assessee.
Immediately
after
receiving
the
order
under
section
154,
the
assessee
preferred
the
appeal
before
the
CIT(A),
the
CIT(A),
had
failed
to
consider
the
explanation
given
by
the
assessee
for
delay
in
pursuing
the
appeal
and
had
22
LT.A No. 54/AGR2021
summarily
rejected
the
appeal
of
the
assessee
on
the
ground
that
the
appeal
was
not
filed
within
the
statutory
period
as
provided
by
the
act.
5.
As
per
record
intimation
under
section
143(1)
was
issued
to
the
assessee
on
17
May
2019
and
thereafter
the
application
was
filed
under
section
154
for
rectification
on
9
June
2019.,
The
grievance
of
the
assessee
was
not
redressed
by
the
assessing
officer
and
therefore
the
assessee
was
constrained
to
file
an
application
on
10"
Feb
2020,
in
response
thereto
the
respondent
had
informed
to
the
assessee
that
the
rectification application
had
already
been disposed
of
on
28th
June
2019
and
the
said
order
of
rejecting
application
under
section
154
was
sent
to
Ld.AR
for
the
assessee,
through
email
communication
on
21
February
2020.
6.
Immediately
thereafter
the
assessee
preferred
the
appeal
before
the
CIT(A)
on
4th
March,
2020.
Ordinarily
the
appeal
is
required
to be
filed
by
the
assessee
efore the CIT(A) within the. of 30 days from the date of receipt of the
order/intimation in the present court case it was 17" May 2019.
7. In our considered opinion the delay in filing the appeal before the alleged
impression that the rectification application is pending adjudication before the
assessing officer. At this stage it would be difficultfor us to find out whether the
communication dated 28 June 2019, was sent by the assessing officer or the CPC
to the assessee or to his AR or not. In any case, the purpose of tax adjudication is
to
collect
due
and
legal
taxes
from
the
assessee
and
for
those
purposes,
the
liberal
approach
is
required
to
be
followed
by
the
authorities
below.
23
IT.A No. 54/AGR2021
Undoubtedly,
the
assessee
was
required
to
be
vigilant
and diligent
in
following
the
remedies
before
the
statutory
authority,
in
the
present
case
it
cannot
be
said
they
the
assessee
was
negligent
in prosecuting
is
right.
Moreover
the
purpose
of
filing
the
appeal
before
the
CIT(A)
was
to
get
the
things
set
right
by
citing
the
correct
provision,
the
same
could
have
been
done
by
the
assessing
officer
if
the
assessing
officer
had
considered
the
application
of
section
154
filed
by
the
assessee.
8.
Needful
was
not
done
by
the
assessing
officer
as
well
as
by
the
CIT(A).
9.
In the light
of
the
above
we
are
of
the
considered opinion
that
the
delay
in
filing
the
appeal
before
the
CIT(A)
is required
to
be
condoned
and
we
accordingly
condone the same.
10.
As
we
have
condoned
the
delay
in
filing
the
appeal
before
the
CIT(A)
and
there
was
no
adjudication
by
the
CIT(A)
on
merit,
it
would
be
are
in
the
interest
of
justice
that
appeal
is
remanded
back
to
the
file
of
the
CIT(A)
with
the
direction
to
decide
the
appeal
on
merit
after
affording
opportunity
of
hearing
to
the
assessee
and
granting
the
opportunity
to file
any
document
as
deemed
appropriate
in
accordance
with
law
and
rules
framed
for
the
said
purpose.
We
made
it
clear
that
we have not expressed any opinion on meritof the case and whatever expression
used in order is only with a view to bring on record the correct facts which were
necessaryfor adjudicatingthe condonationof delay.
LT.A No. 54/AGR/2021
Hence
the
appeal
is
allowed
for
statistical
purposes.
Dr.
MITHA
LAI.
VEENA)
ACCOUNTANT MEMBER
(LALIETKUMAR)
JUDICIALMEMBER
Appellant
Respondent
CIT
DR. iA
True
Copy
By
Order
Mehul