M/S SHRI KARAN NARENDRA AGRICULTURE UNIVERSITY, Jaipur V. INCOME TAX OFFICER (TDS)-3, Jaipur

ITA 581/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1261 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Keywords: Condonation of delay
• Section: 133A; 201(1); 154; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NOS. 581, 582, 583, 584, 585, 586 & 587/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 TO 2015-16. SHRI KARAN NARENDRA AGRICULTURE UNIVERSITY, COLLEGE ROAD, V&P JOBNER, TEHSIL PHULERA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER (TDS) - 3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/TAN NO. JPRS 14180 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUKESH KHANDELWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30.08.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/09/2018. VKNS'K@ ORDER PER BENCH : THESE SEVEN APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST SEVEN SEPARATE ORDERS OF LD. CIT (A) ALL DATED 06.03.2018 AND 07.0 3.2018 ARISING FROM THE ORDERS PASSED UNDER SECTION 201(1) / 201(1A) OF THE IT ACT FOR THE ASSESSMENT YEARS 2009-10 TO 2015-16. THE ASSESSEE HAS RAISED COMMON GROUNDS IN ALL THESE APPEALS. THE GROUND RAISED FOR THE ASSESSMENT YEAR 2009-10 A RE AS UNDER :- 1. THAT THE LD. CIT (A) HAS ERRED ON FACTS IN DIS MISSING THE APPEAL BY NOT CONDONING THE DELAY OCCURRED IN FILING THE A PPEAL. HE FAILED TO APPRECIATE THAT THE APPELLANT BEING A GOV ERNMENT INSTITUTION, NO MALAFIDE WAS THERE IN FILING THE AP PEAL LATE. 2. WITHOUT PREJUDICE TO GROUND NO. 1, THE LD. AO HA S ERRED SERIOUSLY IN LAW AND ON FACTS IN HOLDING THE APPELL ANT AS ASSESSEE IN DEFAULT AND CHARGING THE AMOUNT OF TDS U/S 201(1) 2 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. FOR RS. 73,012/- AND CHARGING INTEREST THEREON U/S 201(1A) OF THE INCOME TAX ACT, 1961 FOR RS. 84,882/- BY IGNORI NG THE COGENT REASON THAT FOR THE PERIOD UNDER CONSIDERATI ON THE APPELLANT INSTITUTION WAS NOT IN EXISTENCE AND HENC E NO LIABILITY CAN BE CAST UPON IT FOR THE SAID PERIOD. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE GROUND OF APPEAL BEFORE HEARING. 2. THE ASSESSEE IS A UNIVERSITY CREATED BY AN ACT O F STATE GOVERNMENT AS AN AGRICULTURAL UNIVERSITY. THERE WAS A SURVEY UNDER SECTION 133A ON 17.03.2015 IN THE CASE OF ASSESSEE UNIVERSITY. DURING THE COURSE OF SURVEY, THE RECORDS OF PENSION PAYMENT AND TDS DEDUCTIONS WERE EXAMINED BY THE ITO TDS AND FOUND THAT THE ASSESSEE DID NOT DEDUCT TDS ON PENSION PAYMENTS AND ACCORDINGLY THE AO PROCEEDED TO TAKE ACTION UNDER SECTION 201(1) / 201 (1A) OF THE IT ACT. THE AO PASSED THE ORDERS UNDER SECTION 201(1)/201(1A) OF T HE ACT FOR THE ASSESSMENT YEARS 2009-10 TO 2015-16. THE ORDERS FOR THE ASSESSMENT YEARS 2009-10 AND 2015-16 WERE PASSED ON 31 ST DECEMBER, 2015 AND 24 TH MARCH, 2015 RESPECTIVELY WHEREAS FOR THE ASSESSMENT YEARS 2010-11 TO 14-15 WERE PASSED O N 16 TH JANUARY, 2016. THE ASSESSEE FILED THE PETITION/APPLICATION UNDER SECTI ON 154 SEEKING RECTIFICATION IN THE ORDERS PASSED BY THE AO UNDER SECTION 201(1) AND 20 1(1A) OF THE ACT WHEREBY THE ASSESSEE WAS HELD AS ASSESSEE IN DEFAULT. HOWEVER, THE AO REJECTED THE APPLICATION FILED UNDER SECTION 154 OF THE ACT. THEREAFTER, TH E ASSESSEE FILED THE APPEALS FOR ALL THESE 7 YEARS BEFORE THE LD. CIT (A) ON 5 TH SEPTEMBER, 2016. SINCE AS PER THE AMENDED RULES, THE APPEAL WAS REQUIRED TO BE FILED ELECTRONICALLY, THEREFORE, THE ASSESSEE FILED THE APPEALS ELECTRONICALLY ON 23 RD FEBRUARY, 2018. THE ASSESSEE HAS ALSO FILED APPLICATION FOR CONDONATION OF DELAY BEF ORE THE LD. CIT (A) EXPLAINING THE 3 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. REASONS FOR DELAY IN FILING THE APPEAL AS THE ASSES SEE WAS ADVISED BY THE COUNSEL TO FILE THE APPLICATION UNDER SECTION 154 OF THE ACT I NSTEAD OF CHALLENGING THE ORDERS PASSED UNDER SECTION 201(1)/201(1A) IN APPEAL BEFOR E THE LD. CIT (A) AND AFTER THE APPLICATION WAS REJECTED, THE ASSESSEE FILED ALL TH ESE APPEALS ON 5 TH SEPTEMBER,2016 AND, THEREFORE, IT WAS SUBMITTED THAT THE DELAY IN FILING THE APPEAL WAS DUE TO WRONG ADVISE GIVEN BY THE EARLIER COUNSEL AND THERE WAS N O MALAFIDE INTENTION OF THE ASSESSEE APPELLANT IN FILING THE APPEALS BELATEDLY. THEREFORE, THE ASSESSEE PLEADED BEFORE THE LD. CIT (A) TO CONDONE THE DELAY OF ABOU T 5 MONTHS IN FILING THE APPEALS. THE LD. CIT (A) DISMISSED THE APPEALS OF THE ASSESS EE IN LIMINE AS BARRED BY LIMITATION BY GIVING THE COMMON FINDING. 3. AGGRIEVED BY THE IMPUGNED ORDERS OF THE LD. CIT (A), THE ASSESSEE HAS FILED THE PRESENT APPEALS. THE LD. A/R OF THE ASSESSEE H AS SUBMITTED THAT INITIALLY THE ASSESSEE WAS ADVISED BY THE COUNSEL TO FILE THE APP LICATION UNDER SECTION 154 AND ONLY AFTER THE SAID APPLICATION WAS REJECTED BY THE AO, THE ASSESSEE FILED THE APPEALS BEFORE THE LD. CIT (A) AND THEREFORE, THERE WAS A D ELAY IN FILING THESE APPEALS BEFORE THE LD. CIT (A). HOWEVER, ONCE THE ASSESSEE HAS EXP LAINED THE CAUSE OF DELAY AS ASSESSEE BEING A UNIVERSITY OWNED AND MANAGED BY TH E GOVERNMENT AND, THEREFORE, THE ASSESSEE WAS STRICTLY TAKING STEPS AS PER THE A DVICE OF THE COUNSEL. THE DELAY IN FILING THE APPEAL WAS NEITHER INTENTIONAL NOR DELIB ERATE BUT IT WAS DUE TO THE WRONG ADVICE GIVEN BY THE COUNSEL AND, THEREFORE, THE TIM E CONSUMED IN THE PROCEEDINGS UNDER SECTION 154 WAS DULY EXPLAINED BY THE ASSESSE E. FURTHER, THE DELAY AFTER THE ORDER PASSED BY THE AO UNDER SECTION 154 WAS ALSO E XPLAINED BY THE ASSESSEE AS THE ASSESSEE HAD TO TAKE THE APPROVAL AND SANCTION FOR FILING THE APPEALS WHICH TOOK 4 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. SOME TIME AND, THEREFORE, THERE WAS A DELAY OF AROU ND 87 DAYS IN FILING THE APPEALS AFTER THE ORDER PASSED UNDER SECTION 154 OF THE IT ACT. THE LD. A/R HAS THUS PLEADED THAT THE DELAY IN FILING THE APPEALS MAY BE CONDONED AND THE APPEALS OF THE ASSESSEE MAY BE DISPOSED OFF ON MERITS. HE HAS REF ERRED TO THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE ASSESSEES OWN CAS E AND SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT THERE WAS NO LIABILITY OF THE ASSESSEE FOR TDS DEDUCTION UPTIL 13.09.2013 AS THE ASSESSEE UNIVERSITY ITSELF CAME TO BE INCORPORATED ON 13.09.2013. THUS THE LD. A/R HAS SUBMITTED THAT VI DE JUDGMENT DATED 24 TH APRIL, 2018 THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT THERE CANNOT BE ANY TAX LIABILITY FOR NON DEDUCTION OF TAX PRIOR TO THE DAT E OF THE ASSESSEE CAME INTO EXISTENCE. 4. ON THE OTHER HAND, THE LD. D/R HAS RELIED UPON T HE ORDERS OF THE LD. CIT (A) AND SUBMITTED THAT THE ASSESSEE HAS FILED THE APPEA LS MANUALLY THAT TOO BELATED BY 173, 180 AND 548 DAYS AND EVEN THE APPEALS WERE FIL ED AFTER A DELAY OF 87 DAYS FROM THE DATE OF THE ORDER PASSED UNDER SECTION 154 . THEREFORE, THE ASSESSEE CANNOT TAKE THE PLEA OF WRONG ADVICE WHEN AFTER THE ORDER PASSED UNDER SECTION 154 THERE WAS A DELAY IN FILING THE APPEALS. HE HAS VE HEMENTLY OPPOSED TO THE CONDONATION OF DELAY. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE RELEVANT MATERIAL ON RECORD. THE FIRST ORDER UNDER SECTION 201(1)/201(1 A) WAS PASSED FOR THE ASSESSMENT YEAR 2015-16 ON 24 TH MARCH, 2015 AND THE SECOND ORDER WAS PASSED ON 31 ST DECEMBER, 2015 FOR THE ASSESSMENT YEAR 2009-10. TH E REST OF THE ORDERS WERE PASSED UNDER SECTION 201(1)/201(1A) ON 16 TH MARCH, 2016. THE ASSESSEE FILED THE 5 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. APPLICATION UNDER SECTION 154 OF THE ACT FOR SEEKIN G RECTIFICATION IN THE ORDERS PASSED UNDER SECTION 201(1)/201(1A). ALL THESE APPLICATIO NS FILED UNDER SECTION 154 OF THE ACT WERE DISPOSED OFF BY THE AO VIDE ORDER DATED 29 TH JULY, 2016. THUS IT IS CLEAR THAT THE ASSESSEE INSTEAD OF FILING THE APPEAL AGAI NST THE ORDER PASSED UNDER SECTION 201(1)/201(1A) PREFERRED TO FILE THE APPLICATION UN DER SECTION 154 AND, THEREFORE, THE TIME CONSUMED IN THE PROCEEDINGS UNDER SECTION 154 HAS BEEN DULY EXPLAINED BY THE ASSESSEE. THE DELAY IN THE APPEALS FILED BY TH E ASSESSEE AFTER THE ORDER PASSED UNDER SECTION 154 IS ONLY 87 DAYS FOR ALL THE ASSES SMENT YEARS. THEREFORE, THE LD. CIT (A) SHOULD HAVE CONSIDERED THE EXPLANATION OF T HE ASSESSEE OF DELAY IN FILING THE APPEAL AFTER GIVING THE DUE CREDIT OF THE TIME CONS UMED IN THE PROCEEDINGS UNDER SECTION 154 OF THE ACT. WE FIND THAT THERE IS NOTH ING ON RECORD TO SUGGEST THAT BY FILING THE APPEALS BELATEDLY THE ASSESSEE HAS ACHIE VED ANY ULTERIOR PURPOSES OR THE ASSESSEE HAS MADE ANY ATTEMPT TO SAVE THE LIMITATIO N IN UNDER HAND WAY. WHEN THE REASONS EXPLAINED BY THE ASSESSEE WERE NOT FOUND TO BE FALSE OR THE ASSESSEE HAS ACTED AS MALAFIDE THEN WHILE CONSIDERING THE CONDON ATION OF DELAY, A LIBERAL AND JUSTICE ORIENTED APPROACH HAS TO BE TAKEN BY THE AP PELLATE AUTHORITY/COURT. IT IS SETTLED PRINCIPLE OF LAW THAT WHEN THE REASONS EXPL AINED ARE FOUND FACTUALLY CORRECT THEN THE APPELLATE AUTHORITY/COURT SHOULD TAKE A LI BERAL VIEW IN CONSTRUING THE SUFFICIENCY OF CAUSE. IN THE CASE IN HAND, THE REA SONS EXPLAINED BY THE ASSESSEE ARE ALL MATTER OF RECORD AS THE ASSESSEE INITIALLY FILE D THE APPLICATION UNDER SECTION 154 INSTEAD OF FILING THE APPEAL BEFORE THE LD. CIT (A) . THIS WAS DONE BY THE ASSESSEE AS PER THE ADVICE OF THE COUNSEL AND, THEREFORE, IF TH E ASSESSEE AS PER THE ADVICE OF THE COUNSEL VESTED THE TIME IN THE PROCEEDINGS UNDER SE CTION 154 THEN THE TIME TAKEN IN 6 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. THE PROCEEDINGS SHALL BE EXCLUDED OR CONSIDERED AS EXPLAINED FOR CONDONATION OF DELAY IN FILING THE APPEALS. HENCE IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE ASSESSEE IS A UNIVERSITY AND THE RE IS NO CASE OF ANY MALAFIDE OR AN ATTEMPT TO COVER AN ULTERIOR PURPOSE, THEN THE M ATTER SHOULD HAVE BEEN DECIDED ON MERITS INSTEAD OF DISMISSING THE APPEALS OF THE ASSESSEE ON TECHNICAL GROUND. THE LD. CIT (A) HAS GIVEN THE COMMON FINDING FOR AL L THE YEARS AND THE FINDING GIVEN FOR THE ASSESSMENT YEAR 2009-10 IN PARA 3 ARE AS UN DER :- 3. I CAREFULLY CONSIDERED THE CONDONATION DELAY A PPLICATION. I FIND THAT THE APPELLANT ALSO FILED MANUAL APPEAL DELAY B Y 173 DAYS WITHOUT ANY GENUINE CAUSE. THE A/R OF THE APPELLANT SUBMITT ED THAT THE APPELLANT FILED APPLICATION U/S 154 OF THE I.T. ACT THAT WAS ALSO DISPOSED OFF ON 29.07.2016. THE APPELLANT DID NOT F ILE APPEAL UPTO 87 DAYS AFTER THE ORDER PASSED U/S 154 OF THE I.T. ACT WITHOUT ANY REASON. THEREFORE THE APPEAL FILED E APPEAL IS ALSO NOT CON SIDERED IN TIME BECAUSE THE A/R OF THE APPELLANT FAILED TO FILE MAN UAL APPEAL IN TIME. THEREFORE, I REJECTED THE CONDONATION DELAY PETITIO N AND THE APPEAL IS DISMISSED AT ADMISSION STAGE. THUS IT IS ADMITTED FACT THAT THE DELAY IN FILING T HE APPEAL AFTER THE APPLICATION UNDER SECTION 154 WAS DISPOSED OFF WAS 87 DAYS WHICH IS N OT AN ABNORMAL OR INORDINATE DELAY AND EVEN OTHERWISE IN THE FACTS AND CIRCUMSTA NCES OF THE CASE WHEN THE ISSUE IS NOT A DIRECT TAX LIABILITY OF THE ASSESSEE BUT T HE ASSESSEE WAS HELD AS ASSESSEE IN DEFAULT WHICH IS VICARIOUS LIABILITY FOR NON DEDUCT ION OF TAX AND DEPENDENT ON THE FACT WHETHER RECIPIENT OF THE AMOUNT HAS ALREADY CONSIDE RED THE SAME IN THE TOTAL INCOME OFFERED TO TAX OR THE INCOME OF THE RECIPIEN T WAS AT ALL LIABLE TO TAX. WE 7 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR. FURTHER NOTE THAT THE APPEAL WAS NOT FILED ELECTRON ICALLY BUT MANUALLY IS ONLY A DEFECT IN THE APPEAL FILED BY THE ASSESSEE WHICH WAS SUBSE QUENTLY REMOVED BY THE ASSESSEE BY FILING THE APPEAL ELECTRONICALLY AND, T HEREFORE, ONCE THE DEFECT WAS REMOVED BY THE ASSESSEE THEN THE APPEAL FILED MANUA LLY WOULD BE CONSIDERED AS DATE OF FILING OF THE APPEAL. HENCE IN THE FACTS A ND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY IN FILING THE APPEALS BEFORE THE LD. CIT (A). SINCE THE LD. CIT (A) HAS NOT DECIDED THE MATTER ON MERITS, THEREFORE, TH E MATTER IN ALL 7 (SEVEN) APPEALS IS REMANDED TO THE RECORD OF THE LD. CIT (A) FOR AD JUDICATION ON MERITS. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04/09/2 018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/09/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-SHRI KARAN NARENDRA AGRICULTURAL U NIVERSITY, JOBNER, JAIPUR. 2. THE RESPONDENT THE ITO TDS-3, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 581-587/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NOS. 581 TO 587/JP/2018 SHRI KARAN NARENDRA AGRICULTURAL UNIVERSITY, JOBNER , JAIPUR.