Glaxo Smith Kline Consumer Health Care Limited, Rajahmundry V. The Income Tax Officer, (TDS), Rajahmundry

ITA 57/VIZ/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6225 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 14-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P SRINIVAS MURTHY
• Assessee Lawyers: ROHIT JAIN; TEJAS V I JAIN S
• Keywords: Right to appeal; TDS; Set aside
• Section: 201(1); 250; 201; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 57 & 58 / VIZ /201 9 (ASST. YEAR : 20 08 - 0 9 & 2009 - 10 ) M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD., 4 TH FLOOR, SIVA TOWERS, DANAVAIPETA, RAJAHMUNDRY. V S . ITO (TDS) , RAJAHMUNDRY . PAN NO. AACCS 0144 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ROHIT JAIN & MS. TEJAS V I JAIN ADV OCATE S DEPARTMENT BY : SHRI P. SRINIVAS MURTHY , SR. DR DATE OF HEARING : 17 / 0 7 /201 9 . DATE OF PRONOUNCEMENT : 07 / 0 8 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THESE APPEAL S BY THE SAME ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) , TIRUPATI , BOTH DATED 23 /0 2 /201 7 FOR THE ASSESSMENT YEARS 200 8 - 0 9 & 2009 - 10 . 2. THERE IS A DELAY OF 661 DAYS IN FILING THE APPEALS . THE ASSESSEE HAS FILED A CONDONATION APPLICATION ALONG WITH AFFIDAVIT , WHEREIN HE EXPLAINED THE REASONS AS UNDER: - IN THIS REGARD, IT IS RESPECTFULLY SUBMITTED THAT DAY - TO - DAY INCOME TAX!TDS MATTERS OF RAJAHMUNDRY FACTORY WERE BEING 2 ITA NO S . 57 & 58/VIZ/2019 ( M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD. ) HANDLED BY ONE MR. P SRIRAM MURTHY WHO WORKED IN THE CAPACITY OF DEPUTY MANAGER, FINANCE. HE WAS AUTHORIZED TO SIGN AND SUBMIT DOCUMENTS WITH THE TAX DEPARTMENTS, FILE PERIODIC TAX RETURNS AND REPRESENT THE COMPANY BEFORE THE CONCERNED TAX AUTHORITIES. MR. P SRIRAM MURTHY WAS LATER FOUND TO BE A DISG RUNTLED EMPLOYEE. OWING TO CERTAIN VENGEANCE AGAINST THE COMPANY, MR. P SRIRAM MURTHY DID NOT COMPLY WITH THE NOTICES RECEIVED BY HIM FROM THE OFFICE OF THE CIT(A). MOREOVER, SINCE THE APPLICANT WAS NOT AWARE ABOUT ISSUE OF NOTICES FROM THE OFFICE OF CIT(A ), NO COMPLIANCE WAS MADE BY ANY OTHER EMPLOYEE OF THE APPLICANT. AS A RESULT, THE ONGOING CASE OF THE APPLICANT COMPANY BEFORE THE CIT(A) WAS DISMISSED EX - PARTE VIDE ORDER DATED 23.2.2017. THE RECEIPT OF THE SAID ORDER OF THE CIT(A) WAS NEITHER INFORMED B Y HIM TO ANY OTHER PERSON AT THE FACTORY NOR TO ANY PERSON AT THE HEAD OFFICE. SUBSEQUENTLY, DISCIPLINARY PROCEEDINGS WERE INITIATED AGAINST MR. P SRIRAM MURTHY FOR COMMITTING CERTAIN IRREGULARITIES, AS A RESULT, WHEREOF HE WAS SUSPENDED FROM HIS OFFICIAL DUTIES W.E.F, 26.7.2018. IT WAS ONLY POST HIS SUSPENSION, THAT THE FACT OF EX - PARTE ORDER HAVING BEEN PASSED BY THE CIT(A) FOR ASSESSMENT YEAR 2009 - 10 AND NON - FILING OF APPEAL AGAINST THE SAID ORDER CAME TO SIGHT, WHEN AN ATTEMPT WAS MADE TO RETRIEVE/ SCRU TINIZE THE RECORDS IN POSSESSION OF MR. MURTHY. ON FURTHER ENQUIRY, IT WAS REALIZED THAT THE APPEAL DOCUMENTS WERE NEITHER PREPARED BY MR. MURTHY NOR FORWARDED TO THE CONSULTANTS AND CONSEQUENTLY, NO APPEAL WAS FILED AGAINST THE IMPUGNED ORDER. THE DOCUMEN TS WERE, THEREAFTER, FORWARDED TO THE TAX CONSULTANTS FOR PREPARATION AND FILING OF APPEAL. IN VIEW OF THE ABOVE, THE APPLICANT HAS NOW FILED THE ABOVE APPEAL AGAINST THE ORDER OF CIT(A) ON 14.02.2019, AFTER DELAY OF 661 DAYS FROM THE DATE OF ORDER PASSED BY THE CIT(A) (ASSUMING THE SAME TO BE THE DATE OF SERVICE OF CIT(A) ORDER ON MR. P SRIRAM MURTHY), EXPIRING ON 24.04.2017, IN TERMS OF SUB - SECTION (3) OF SECTION 253 OF THE ACT, IN VIEW OF THE CIRCUMSTANCES BEYOND THE CONTROL OF APPLICANT, DISCUSSED ABOVE . IT IS IN THE AFORESAID PECULIAR FACTS AND CIRCUMSTANCES, THAT THE DELAY IN FILING OF APPEAL WITHIN THE STATUTORY PERIOD OF 60 DAYS FROM THE RECEIPT OF THE ORDER PASSED BY THE ASSESSING OFFICER HAS OCCURRED, WHICH IS NEITHER WILLFUL NOR DELIBERATE. IT IS FURTHER SUBMITTED THAT, IT WAS NEVER THE INTENTION OF THE APPLICANT NOT TO AGITATE THE ORDER PASSED BY THE CIT(A) UNDER SECTION 250 OF THE ACT IN APPEAL AND THE APPLICANT DID NOT WANT TO GIVE UP ITS VALUABLE RIGHT OF APPEAL. THE APPLICANT, IT IS RESPECTFUL LY SUBMITTED, DOES NOT STAND TO GAIN FROM DELAY IN FILING THE APPEAL; ON THE CONTRARY, THE APPLICANT IS PREJUDICIALLY AFFECTED. IT IS, THEREFORE, HUMBLY URGED THAT THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDONED AND THE APPEAL MAY BE TAKEN UP AND 3 ITA NO S . 57 & 58/VIZ/2019 ( M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD. ) DEC IDED ON MERITS IN VIEW OF THE DISCRETION VESTED IN YOUR HONOUR UNDER SECTION 253(5) OF THE ACT. AFFIDAVIT OF THE AUTHORIZED SIGNATORY OF THE APPLICANT COMPANY TO THIS EFFECT, IN SUPPORT OF THE PRESENT APPLICATION FOR CONDONATION OF DELAY, IS ENCLOSED AT PA GES 27 TO 29. 3. THE COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT DUE TO NEGLIGENCE ON THE PART OF SRI P. SRIRAM MURTHY, WHO IS I N - CHARGE OF THE TAX MATTERS , DEL A Y WAS CAUSED. IT IS ALSO SUBMITTED THAT THE HEADQUARTER OF THE COMPANY AT CHANDIGARH HAS BEEN FILING TAX MATTERS AT CHANDIGARH INCOME - TAX OFFICE AND SUBMITTED THAT THE PRESENT MATTER IS NOT IN THE NOTICE OF THE OFFICE OF THE HEADQUARTER AT CHANDIGARH AND SUBMITTED THAT DELAY MAY BE CONDONED. 4 . ON THE OTHER HAND, LD.DR HAS SUBMITTED THAT HUGE DELAY CANNOT BE CONDONED. 5. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE AFFIDAVIT FILED BY THE ASSESSEE. IT APPEARS FROM THE AFFIDAVIT THAT MR. P.SRIRAM MURTHY LOOKING AFTER THE TAX MATTERS AND ORDER PASSED U/SEC. 201(1) & 201(1A) WAS HANDED OVER TO HIM . SO FAR AS FILING OF THE APPEAL IS CONCERNED, IT WAS NOT BROUGHT TO THE NOTICE OF THE CONCERNED OFFICIALS, THEREFORE, HE SUSPENDED INITIALLY AND SUBSEQUENTLY DISMISSED FROM SERVICE . WHEN THERE WAS AN ENQUIRY BY THE DIRECTOR IN RESP ECT OF PENDING TAX ISSUES, IT CAME TO THE NOTICE THAT AGAINST THE EXPARTE ORDER PASSED BY THE LD. CIT(A) , NO APPEAL HAS BEEN FILED . AFTER CAREFUL CONSIDERATION OF THE 4 ITA NO S . 57 & 58/VIZ/2019 ( M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD. ) AFFIDAVIT, THERE IS A SUFFICIENT CAUSE IN NOT FILING THE APPEAL IN TIME. IN OUR OPINION, IT IS FIT CASE TO CONDONE THE DELAY . ACCORDINGLY, DELAY IS CONDONED. 6 . SO FAR AS MERITS OF THE CASE IS CONCERNED, THERE IS TWO DAYS DELAY IN FILING THE AP P EAL BEFORE THE LD. CIT(A), NO CONDONATION APPLICATION IS FILED , THEREFORE, HE DISMISSED THE SAME IN LIMINE. BY CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) . THE LD. CIT(A) AFTER CONSIDERING THE CONDONATION APPLICATION , WHICH IS TO BE FILED BY THE ASSESSEE , DECIDE THE APPEAL ON MERITS IN ACCORDANCE WITH LAW ( SUBJECT TO OUTCOME OF THE CONDONATION APPLICATION ) . THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7 . SO FAR AS ITA NO. 58/VIZ/2019 IS CONCERNED, THE FACTS OF THIS AP P EAL ARE SIMILAR TO THE FACTS INVOLVED IN ITA NO. 57/VIZ/2019 , T HEREFORE, OUR DECISION IN ITA NO. 57/VIZ/2019 SHALL APPLY MUTATIS MUTANDIS TO THIS APPEAL ALSO. 8 . IN THE RESULT, APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 7 T H DAY OF AUGUST , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 7 T H AUGUST , 201 9 . 5 ITA NO S . 57 & 58/VIZ/2019 ( M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD. ) VR/ - COPY TO: 1. THE ASSESSEE M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD., 4 TH FLOOR, SIVA TOWERS, DANAVAIPETA, RAJAHMUNDRY. 2. THE REVENUE ITO (TDS), RAJAHMUNDRY. 3. THE CIT (TDS), VIJAYAWADA. 4. THE CIT(A) , TIRUPATI. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.