Appeal details
Counselvise Citation
[2022] 105 COUNSELVISE.COM (IT) 5516 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-03-2022
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Assessment Year
2013-2014
Appeal Filed On
29-12-2021
Judgement Text
आयकर अपीलीय अिधकरण ‘बी’ ायपीठ चे ई म । IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI माननीय +ी महावीर िसंह, उपा12 एवं माननीय +ी मनोज कु मार अ7वाल ,लेखा सद: के सम2। BEFORE HON’BLE SHRI MAHAVIR SINGH, VICE PRESIDENT AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकर अपील सं./ ITA Nos.620 to 627/Chn y/2021 (िनधाCरण वषC / Assessment Year: 2013-14) & आयकर अपील सं./ ITA Nos.628 to 633/Chn y/2021 (िनधाCरण वषC / Assessment Year: 2014-15) & आयकर अपील सं./ ITA Nos.634 to 638/Chn y/2021 (िनधाCरण वषC / Assessment Year: 2015-16) && आयकर अपील सं./ ITA No.639/Chn y/2021 (िनधाCरण वषC / Assessment Year: 2016-17) M/s. Shri Janani Homes Pvt. Ltd. No.9, Second Cross, Mugambigai Nagar, Reddiyar Palayam, Pondicherry – 605 010. बनाम/ V s. DCIT Centralized Processing Cell-TDS, Ghaziabad. थायी लेखा सं./जीआइ आर सं./P AN / T AN AAN C S -4 6 2 0 -C (अ पीलाथ /Appellant) : ( थ / Respondent) अपीलाथ की ओरसे/ Appellant by : Shri R. Venkata Raman (CA)-Ld. AR थ की ओरसे/Respondent by : Shri G. Johnson (Addl. CIT) –Ld. DR सुनवाई की तारीख/ Date o f Hea rin g : 31-03-2022 घोषणा की तारीख / Date of Pronouncement : 31-03-2022 ITA Nos.620 to 639/Chny/2021 - 2 - आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. The grievance of the assessee in aforesaid appeals for various Assessment Years (AY) is common i.e., levy of Fees u/s 234E for late filing of Quarterly TDS returns. 2. The Ld. AR, at the outset, submitted that ITA No.632/Chny/2021 is duplicate of ITA No.631/Chny/2021 and therefore, the same may be dismissed as infructuous. Concurring with the submissions, we dismiss ITA No.632/Chny/2021 as infructuous. 3. The Registry has noted a delay of one day in ITA Nos.622 to 631/Chny/2021, 633/Chny/2021 & 639/Chny/2021. Considering the period of delay, we condone the delay and admit the appeals for adjudication on merits. 4. The grounds raised by the assessee are identical in all the appeals. The grounds taken in ITA No.620/Chny/2021 read as under: - 1. For that the order of the Commissioner of Income-tax (Appeals) -NFAC, is contrary to law, facts and circumstances of the case and is opposed to the principles of natural justice. 2. That the appellant company in this grounds of appeal objects to the CPC (TDS) Aaykar Bhawan, sector 3, Vaishali Ghaziabad UP. 201010 action of levying interest u/s. 201(1A) of the Act against the assessee company for the quarter one. 3. The Ld. NFAC erred in making addition of Rs. 87,130/- not justified in law. 4. On the facts and in the circumstances of the case and in law, the learned NFAC erred in not deciding the issue on merits. 5. Learned NFAC had concluded the appellant Proceeding only bounded toward delay in condonation of appeal, and it deprived assessee company legal rights to appeal. Though Appellant company provided with reason. 6. That the assessee Company is hereby contenting that the CPC had wrongly levied the interest under section 201(1A) of the Act by issuing intimation of u/s. 200A of the Act, thereby being held illegal and not tenable in law. 7. On the merits of the above grounds, the appellant Company is pleading to drop interest levied u/s. 201(1A) and quash the intimation order passed by CPC for the relevant year under consideration. We pray for, to settle the dispute in the favour ITA Nos.620 to 639/Chny/2021 - 3 - of Appellant Company, as the appellant company had complied all the provisions of TDS. 8. For these grounds and other reasons that may be adduced at the time of hearing, the Learned ITAT may delete the improper additions made and thus render justice. This appeal arises out of the order passed by learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [CIT(A)] dated 08.11.2021 in the matter of demand raised by CPC (TDS) levying fees u/s 234E for late filing of quarterly TDS return. 5. The Ld. AR submitted that the assessee’s appeal has been dismissed by Ld. CIT(A) for want of condonation of delay which was as follows: - No. ITA No. Period of Delay 1. 620/Chny/2021 1065 days 2. 621/Chny/2021 40 days 3. 622/Chny/2021 1066 days 4. 623/Chny/2021 1066 days 5. 624/Chny/2021 1066 days 6. 625/Chny/2021 1067 days 7. 626/Chny/2021 1067 days 8. 627/Chny/2021 1067 days 9. 628/Chny/2021 1866 days 10. 629/Chny/2021 1332 days 11. 630/Chny/2021 1332 days 12. 631/Chny/2021 1246 days 13. 633/Chny/2021 1866 days 14. 634/Chny/2021 1583 days 15. 635/Chny/2021 1331 days 16. 636/Chny/2021 1584 days 17. 637/Chny/2021 1584 days 18. 638/Chny/2021 1584 days 19. 639/Chny/2021 1197 days The Ld. AR urged that the assessee had reasonable cause for late filing of appeals. The Ld. Sr. DR, on the other hand, submitted that such an inordinate delay could not be condoned and each day’s delay has to be explained by the assessee. ITA Nos.620 to 639/Chny/2021 - 4 - Having heard rival submissions and after perusal of impugned order, our adjudication would be as given in succeeding paragraphs. 6. It is undisputed fact that there was delay in filing of quarterly TDS returns and accordingly, while processing TDS returns, CPC (TDS) has levied fees u/s 234E. The assessee preferred further appeal before Ld. CIT(A) wherein the appeal was dismissed on limitation ground as under:- 4. Limitation The appeal has not been presented within the stipulated period of thirty days from the date of service of the order sought to be appealed against. It is noticed from Form No, 35 that the appeal has been presented on 10.03.2020, whereas the date of order being appealed against is 10.03.2017. Thus, the appeal in present case has been filed after delay of 1065 days. The appellant has sought condonation of delay in Form 35. The grounds for condonation of delay have been mentioned at Column 15 thereof. The reasons for delay are stated therein as under:- 1) That we are assessed to Deputy Commissioner of Income Tax, Circle 1, Puducherry in the status of company for the Assessment year 2013-14. That we prefer an appeal before the Hon'ble Commissioner of Income Tax, Puducherry on 10.03.2020. 2) We would like to state that the appeal is delayed due to the facts that we were not aware about all the notices issued by the Department as our previous auditor did not acknowledge us about these intimations. Further we did not receive all the relevant intimation through email communication. Thereby failed in filing the appeal before the CIT (Appeals) against the intimation order passed by the CPC TDS u/s 200A. 3) That we had no intention to jeopardize the interest of the Revenue by delaying the filing of the appeal. 4) We submit that the delay in filing the appeal is not willful. We pray that the delay in filing the appeal may kindly be condoned and the appeal admitted. 4.1 During the appellate proceedings, the appellant has made written submission before the National Faceless Appeal Centre (NFAC), wherein it has reiterated the aforesaid reasons for delay in filing appeal and submitted that the delay be condoned and substantial justice be rendered by deciding the appeal on merit. Findings - 5. On perusal of the aforesaid reasons, I find that there has been a considerable delay of 1065 days in presenting this appeal. The appellant has merely stated that this inordinate delay was attributable to lack of knowledge and communication gap, as the appellant did not receive the intimation through email communication. The appellant has neither elaborated upon these reasons, nor substantiated the same by way of any documentary evidence. In absence of any substantiation, the grounds for condonation of delay as mentioned by the appellant, is merely a bald assertion without any basis, which is not supported by cogent and proper evidence, and the same would not, as such, constitute "sufficient cause" within the meaning of section 249 (3) of the Act. In fact, the reasons put forward only ITA Nos.620 to 639/Chny/2021 - 5 - show lack of due diligence on part of the appellant in making statutory compliances viz. furnishing of TDS statements within the prescribed period. 5.1 It is evident from the facts on record that the TDS statements for the relevant period were filed belatedly by the appellant; that these TDS statements have been filed electronically; and that the intimation order under section 200A has also been issued by the AO electronically. The said intimation orders could be viewed readily by the appellant on the TRACES (IDS Reconciliation, Analysis and Correction Enabling System) portal of the Income Tax Department. The intimation under section 200A has been sent by the CPC at the Registered email id of the appellant. This is also an admitted fact that the appellant had been electronically filing TDS returns for subsequent quarters also, and hence was accessing the details of its TDS statements even thereafter. Hence, the claim of the appellant that he was unaware about the intimation made under section 200A, and the TDS default brought out therein, is devoid of any merit. It is trite law that deliberate inaction or negligence on the part of the appellant is not a sufficient ground for condonation of delay. The reasons stated by the appellant for not filing the appeal within the prescribed time are found to be bereft of any merits. 5.2 This is a case where an appeal is sought to be preferred after an inordinate delay of 1065 days beyond the time limit prescribed under sub section (2) of section 249 of the Act. In this context, it is pertinent to refer to the relevant provisions which read as under:- Form of appeal and limitation 249, (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: Provided further that where an application has been made under sub-section (1) 'of section 270AA, the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assessee, shall be excluded, or (c) in any other case, the date on which intimation of the order sought to be appealed against is served. (2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the 1st day of October. 1998 but before the 1st 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 Ist day of July, 2000. (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 not presenting it within that period. 5.3 It is pertinent to note here that the delay may be condoned and the appeal may be admitted under section 249 (3) only if the appellant could successfully demonstrate that it had "sufficient cause" for not presenting the appeal within the stipulated period of thirty days. The exercise of discretion in matters of limitation, such as by way of condoning the delay under section 249 (3) of the Act, has to be ITA Nos.620 to 639/Chny/2021 - 6 - carried out within the meaning of "sufficient cause", as referred to in Section 5 of The Limitation Act, 1963. The general rule of law of limitation is that an extension of prescribed period shall not be granted, unless the appellant satisfies the court that he had " sufficient cause" for not presenting the appeal within the prescribed period. The onus of establishing "sufficient cause" lies on the appellant, as clearly laid down in various judicial pronouncements. 5.4. Hon'ble Supreme Court, in the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs, (2008) (8 SCC 321), has enunciated certain principles which are applicable while considering applications for condonation of delay, under Section 5 of imitation Act. These principles may be summarized as follows:- • The words "sufficient cause", as appearing in Section 5 of Limitation Act, should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the applicant/appellant, in order to advance substantial justice. The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case. • The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation. The degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. • Want of 'diligence' or Inaction can be attributed to an applicant/appellant only when Something, required to be done by him, is not done. When nothing is required to be done, courts do not expect the applicant/appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court regularly to ascertain the current position but await information from his counsel about the listing of the appeal. 5.5 To quote their lordships' decision verbatim in the case cited supra:- "13......The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." 5.6 The aforesaid view was reiterated in the case of Balwant Singh (Dead) Vs. Jagdish Singh, (2010) (8 SCC 685), where in the Court has held as under:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. ITA Nos.620 to 639/Chny/2021 - 7 - 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Ortce a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 5.7 The Courts in the abovementioned cases, have highlighted upon the importance introducing the concept of "reasonableness" while giving the clause "sufficient cause" a liberal interpretation. In furtherance of the same, the Courts has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party's inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties. 5.8 In the case of Ornate Traders Private Limited Vs I.T.O. (Order dated 29.08.2008 arising out of ITA No 1814 of 2008), the Division bench of Hon'ble Bombay High Court, in its have emphasized the need for reasonableness and hence, the actions which can be condoned by the court should fall within the scope of normal human conduct or normal conduct of a litigant. The Bombay High Court has further observed that while Section 5 of the Limitation Act is being interpreted liberally, it cannot be so liberally that it is without any |U:iiification, since condonation of delay in a mechanical or routing mannlllii/ill jeopardize the legislative intent behind Section 5. 5.9 The Hon'ble Supreme Court in the case of Shiv Dass Vs. Union of India (UOI) & Ors., (AIR 2007 SC 1330) held that the High Courts, while exercising their discretionary powers under Article 226, should consider delay or lapses and, refuse to invoke its extraordinary powers if it is found that the applicant had neglected/omitted to assert its rights in a timely manner; however, this discretion has to be exercised judicially and reasonably. 5.10 The Hon'ble Supreme Court, in a recent judgment in the case of University of Delhi Vs Union of India & Ors., in its order dated 17.12.2019 arising out of Civil Appeal No. 9488 of 2019, has refused to condone delay by holding that:- "27....the entire explanation as noted above, depict the casual approach, unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, lapses would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. 28. In the matter of condonation of delay and lapses, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with." 5.11 In the case of Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil Smt. Vedabai (2002) (122 Taxman 114) (SC), the Hon'ble Apex Court, while disposing appeal, has concluded that a distinction has to be made between inordinate delay and a case where the delay is of few days and the court ITA Nos.620 to 639/Chny/2021 - 8 - has to exercise discretion on the facts of each case. The relevant portion of the judgment is reproduced as under,- "In exercising discretion u/s 5 of the Limitation Act, 1963, to condone delay for sufficient cause in not preferring an appeal or other application within the period prescribed, courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former consideration of prejudice to the other side will be a relevant factor and calls for a more cautious approach, in the later case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise its discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance. The expression "sufficient cause" should receive a liberal construction." 5.12 From the above decisions it becomes clear that 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 appeal within the prescribed period. Litigant must be able to demonstrate that there was "sufficient cause" which obstructed his action to file appeal, beyond the prescribed time limit. 5.13 The law of limitation is found upon the maxims "Interest Reipublicae Ut Sit Finis Litium" i.e. litigation must come to an end in the interest of society as a whole, and "vigilantibus non dormientibus Jura subveniunf i.e. the law assists those that are vigilant with their rights, and not those that sleep thereupon. The law of limitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant. 5.14 The Single Judge bench of the Hon'ble Madras High Court, while exercising writ jurisdiction in Kathiravan Pipes Pvt. Ltd., Vs CESTAT, (2007) (5 SIR 9) (Mad.) has observed that the period of limitation prescribed is not for destruction of a statutory right but only to give finality without protracting the matter endlessly. 5.15 In the present case, the appellant has not adduced any reasonable cause which prevented it from filing appeal within the prescribed period of thirty days. It has filed appeal after an inordinate delay of 1065 days. Unless and until it is demonstrated that there was sufficient cause that prevented the appellant from exercising its legal remedy of filing appeal within that prescribed period of thirty days, the delay thereafter cannot be condoned without there being compelling grounds, as laid down by the Hon'ble Courts. 5.16 On the given facts of the case, it is clear that the statutory right to appeal which was vested with the appellant has not been exercised within the stipulated time under section 249(2). Thus, this is clearly a case of lapses, which are directly the result of deliberate inaction on the part of the appellant. 5.17 This is not a case of change in law which is beneficial to the appellant and hence the delay in seeking such remedy may be condoned in the furtherance of substantial justice. Therefore, there is no denial or destruction of a statutory right in this case, by adhering to the prescribed period of limitation as otherwise it will only lead to protract the matter endlessly and will undoubtedly render the legislative scheme and intention behind the concerned provision otiose as held by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTD, Kakinada & Ors. Vs M/s Glaxo Smith Kline Consumer Health Care Limited (2020) (36 G.S.T.L. 305). ITA Nos.620 to 639/Chny/2021 - 9 - 5.18 Hon'ble High Court of Punjab and Haryana, in the case of CIT Vs Ram Mohan Kabra (2002) (257 ITR 773)(Punjab & Haryana) has upheld the decision of Tribunal, in declining the condonation of delay of five days only, with the following ratio:- "3. The provisions relating to prescription of limitation in every statute must not be construed so liberally that it would have the effect of taking away the benefit accruing to the other party in a mechanical manner. Where the Legislature spells out a period of limitation and provides for power to condone the delay as well, there such delay can be condoned only for sufficient and good reasons supported by cogent and proper evidence. Now it is a settled principle of law that the provisions relating to specified period of limitation must be applied with their rigour and effective consequences." 5.19 Hon'ble High Court of Allahabad, in the case of Sital Prasad Vs CIT (1991) (187 ITR 135) (Allahabad) has upheld the decision of lower appellate authorities, in declining the condonation of delay of about three months, where the condonation was sought on grounds of an accident and fracture, but no medical certificate was filed in support. 5.20 Hon'ble Supreme Court, in the case of P. K. Ramchandran Vs State of Kerala (AIR 1998 SC 2276) has held that law of limitation may harshly effect a particular party, but it has to be applied with all its rigour when the statute so prescribes, and the Courts have no power to extend the period of limitation on equitable grounds. The same view has been reiterated by the Hon'ble Apex Court in the case of Lachhman Das Arora Vs Ganeshi Lal (1999) (8 SCC 532). 5.21 Hon'ble Delhi High Court, in the case of Hindustan Coca- Cola Marketing (P) Ltd. Vs M/s I. P. Arts Society (RFA No 333/2011 dated 06.07.2011) (Delhi) has held that that total negligence and inaction on part of the party cannot be condoned, as the issue of condonation of delay is case and facts specific. 6. On the facts and circumstances of the case, and in view of the position of law applicable on the given facts, I am satisfied that the appeal has not been presented within the period prescribed under section 249(2) of the Act, i.e. thirty days from the date of service of the notice of demand relating to the assessment order. I am also satisfied that the appellant has not been able to show any sufficient cause" for not presenting the appeal within the said prescribed period, within the meaning of section 249(3) of the Act, read with section 5 of The Limitation Act. The application seeking condonation of delay in presenting the appeal is hereby rejected. Accordingly, the appeal is not admitted for adjudication on merits. Thus the appeal was dismissed on the ground of limitation against which the assessee is in further appeal before us. 7. Upon perusal of impugned order, it could be seen that Ld. CIT(A) has dealt with the issue of limitation in a very exhaustive manner. To seek condonation of inordinate delay of as many as 1065 days, it was incumbent on the assessee to show sufficient cause for late filing of the ITA Nos.620 to 639/Chny/2021 - 10 - appeal. This is more important when the orders, notices etc. were readily available in the digital mode on TRACES as noted by Ld. CIT(A) in para- 5.1 of the order. The assessee could not demonstrate any sufficient cause for late filing of the appeal. Similar is the position before us wherein no new material could be adduced by the assessee in support of its submissions. Therefore, the appeal has rightly been dismissed by Ld. CIT(A) and we see no reason to interfere in the same. Accordingly, the appeal stands dismissed. 8. Similar are the facts in all the other appeals wherein assessee’s appeals have been dismissed for want of condonation of delay. The impugned order is substantially the same. Therefore, taking the same we dismiss all the other appeals also. 9. All the appeals stands dismissed. Order pronounced on 31 st March, 2022. Sd/- (MAHAVIR SINGH) उपा12 /VICE PRESIDENT Sd/- (MANOJ KUMAR AGGARWAL) लेखा सद: / ACCOUNTANT MEMBER चे*ई / Chennai; िदनांक / Dated : 31-03-2022 EDN/- आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 2. यथ /Respondent 3. आयकर आयु (अपील)/CIT(A) 4. आयकर आयु /CIT 5. िवभागीय ितिनिध/DR 6. गाड फाईल/GF
