ALACRITY EXPORTS PVT. LTD, JAIPUR V. INCOME TAX OFFICER, TDS-2, JAIPUR

ITA 828/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0539 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 19-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Assessee Lawyers: R S POONIA
• Keywords: Reasonable cause
• Section: 246; 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 JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 828 & 829/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 ALACRITY EXPORT PVT. LTD., AA-03, ANITA COLONY, BAJAJ NAGAR, JAIPUR CUKE VS. DCIT, CPC-TDS, GHAZIABAD, UP LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JPRA01938G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI R. S. POONIA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI JAI SINGH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/09/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 19/09/2018 VKNS'K@ ORDER PER BENCH: THE APPEAL IN ITA NO. 828/JP/18 HAS BEEN FILED BY T HE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-03, JAIPUR DATED 15 .05.2018 FOR A.Y. 2013-14 WHEREIN APPEAL OF THE ASSESSEE WAS DISMISSE D AS WITHDRAWN. IN THIS REGARD, THE LD. AR HAS SUBMITTED THAT THE A SSESSEE HAS INSTRUCTED THE AR TO WITHDRAW THE APPEAL NO. 796/JP /2016-17 ON ACCOUNT OF SMALL QUANTUM OF LEVY OF PENALTY AMOUNTI NG TO RS. 2,600/- ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 2 U/S 236(E) HOWEVER FOR BY MISTAKE, THE LD. AR REQUE STED THE LD. CIT(A) TO WITHDRAW THE APPEAL NO. 794/JP/2016 INSTEAD OF 7 96/JP/2016-17 AND IT WAS SUBMITTED THAT THE AR HAS COMMITTED A BONA F IDE MISTAKE AS 3 APPEALS ON SIMILAR ISSUES WERE FIXED ON THE SAME DA TE AND BY MISTAKE, HE HAS MADE THIS REQUEST BEFORE THE LD. CIT(A) FOR WITHDRAWING THE PRESENT APPEAL. IN SUPPORT OF THE SAME, LD. AR HAS FILED AN AFFIDAVIT OF THE ASSESSEE AS WELL AS THE AUTHORIZED REPRESENTATI VE. THE LD. AR HAS FURTHER SUBMITTED THERE IS DELAY IN FILING THE APPE AL BY 607 DAYS ON ACCOUNT OF FACT THAT THERE WAS NO PROVISIONS TO FIL E THE APPEAL AGAINST THE INTIMATION U/S 200A OF THE ACT AND SUBSEQUENTLY , IN NOVEMBER 2016, WHEN HIS TAX CONSULTANT ADVICE HIM THAT SUCH A PROVISION HAS BEEN MADE UNDER SECTION 246 WHEREBY THE INTIMATION UNDER SECTION 200A HAS BEEN MADE APPEALABLE, THEY HAVE FILED THE APPEAL WHICH HAS SINCE BEEN DISMISSED BY THE LD CIT(A). 2. AFTER HEARING THE RIVAL CONTENTIONS AND PURSUIN G THE MATERIAL AVAILABLE ON THE RECORD, WE SET-ASIDE THE MATTER TO THE FILE OF LD CIT(A) WHO SHALL EXAMINE ABOVE SAID CONTENTION OF THE LD A R REGARDING INADVERTENT WITHDRAWAL OF THE APPEAL AS WELL AS THE DELAY IN FILING THE APPEAL. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 3 3. IN ITA NO. 829/JP/2018, THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF LD. CIT(A)-03, JAIPUR DATED 15.05.2018 FOR A.Y. 2013-14 WHEREIN APPEAL OF THE ASSESSEE AGAINST THE LEVY OF LATE FILING FEE U/S 234E WAS DISMISSED AT THE ADMISSION STAGE ON ACCOUN T OF DELAY IN FILING THE APPEAL AND REJECTING THE CONDONATION PETITION F ILED BY THE ASSESSEE. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT AN INTIMATION U/S 200A OF THE ACT WAS PASSED BY THE DCIT, CPC-TDS DAT ED 25 TH DECEMBER, 2013 WHEREIN IN RESPECT OF STATEMENT FILE D BY THE ASSESSEE FOR THE 2 ND QUARTER OF THE FY 2012-13 WHICH WAS FILED ON 31 MA RCH 2015, LATE FILING FEE U/S 234E OF THE ACT HAS BEEN LEVIED. THEREAFTER, AN APPEAL WAS E-FILED BY THE ASSESSEE ON 29.11.2016 BE FORE THE LD. CIT(A) ALONG WITH CONDONATION PETITION FOR DELAY IN FILING THE APPEAL STATING THAT THE ASSESSEE WAS UNAWARE AS TO WHETHER THE INTIMATI ON ORDER U/S 234(E) WAS APPEALABLE OR NOT. THE LD. CIT(E) REJECT ED THE CONDONATION APPLICATION STATING THAT THERE WAS NO GENUINE CAUSE WHICH PREVENTED APPELLANT TO FILE IN TIME. ACCORDINGLY, HE REJECTED THE CONDONATION OF APPLICATION AS WELL AS APPEAL OF THE ASSESSEE WAS D ISMISSED AT THE ADMISSION STAGE. ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 4 5. BEFORE US, THE LD. AR REFERRED TO THE AFFIDAVIT FILED BY THE ASSESSEE AND SUBMITTED THAT INITIALLY ON RECEIPT OF THE INTIMATION, THE ASSESSEE TOOK ADVISE AND CONSULTATIONS FROM HIS TAX CONSULTANT AND THE TAX CONSULTANTS AT THAT POINT IN TIME HAD ADVISED H IM THAT THERE IS NO PROVISION FOR FILING APPEAL AGAINST THE INTIMATION ISSUED U/S 200A OF THE ACT. THEREAFTER, IN NOVEMBER, 2016, THE TAX CONSULT ANT AGAIN ADVISED HIM THAT THE PROVISIONS HAVE BEEN MADE IN THE ACT W .E.F 01.06.2015 WHEREIN THE INTIMATION ISSUED U/S 200A HAS BEEN MAD E APPEALABLE U/S 246A OF THE ACT. THEREFORE, BASIS ON THE SAID ADVIC E, THE APPELLANT HAS FILED THE APPEAL BEFORE THE LD. CIT(A) ON 29.11.201 6. IT WAS ACCORDINGLY SUBMITTED THAT NON FILING OF THE APPEAL ON ACCOUNT OF NO PROVISION IN THE STATUTE INITIALLY AND SUBSEQUENT INSERTION OF THE A PPEAL PROVISIONS IN THE STATUTE AND THE FACT THAT AS SOON AS THE SAID ADVIC E WAS RECEIVED BY THE ASSESSEE FROM HIS TAX CONSULTANT, HE HAS FILED THE APPEAL BEFORE THE LD. CIT(A), THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE IN NOT FILING THE APPEAL IN TIME AND IT WAS ACCORDINGLY SU BMITTED THAT THE DELAY IN FILING THE APPEAL OF 577 DAYS MAY KINDLY BE COND ONED AND THE MATTER MAY KINDLY BE SET ASIDE TO THE FILE OF THE LD. CIT( A) FOR DECIDING ON MERIT. ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 5 6. THE LD. DR IS HEARD WHO HAS OPPOSED THE CONDONAT ION PETITION. AT THE SAME TIME, HE FAIRLY SUBMITTED THAT EARLIER THE RE WAS NO PROVISION FOR FILING THE APPEAL AGAINST THE INTIMATION ISSUED U/S 200A OF THE ACT AND THE SAID INTIMATION HAS BEEN MADE APPEALABLE SU BSEQUENTLY WITH THE EFFECT FROM 01.06.2015. 7. WE HAVE HEARD THE RIVAL CONTENTION AND PURSUED THE MATERIAL AVAILABLE ON THE RECORD. THE PRESENT APPEAL RELATES TO INTIMATION PASSED U/S 200A OF THE ACT DATED 13 MARCH 2014 AND UNDISPU TEDLY, AT THAT POINT IN TIME, THE SAID INTIMATION WAS NOT APPEALAB LE BEFORE THE LD. CIT(A) U/S 246A OF THE ACT. THEREAFTER, W.E.F 01.06 .2015, THE SAID INTIMATION ISSUED U/S 200A HAS BEEN MADE APPEALABLE HENCE WHEN THERE IS NO PROVISION TO FILE AN APPEAL AGAINST A P ARTICULAR INTIMATION, THE ASSESSEE CANNOT BE EXPECTED TO APPROACH THE LD. CIT (A) WHO WOULD HAVE REJECTED THE APPEAL FOR WANT OF NECESSARY JURI SDICTION. FURTHER THE ASSESSEE IN HIS AFFIDAVIT HAS SUBMITTED THAT HE HAS SOUGHT THE ADVICE OF THE TAX CONSULTANTS AND INITIALLY, HE HAD ADVISED T HERE WAS NO PROVISION TO FILE AN APPEAL AND SUBSEQUENT IN NOVEMBER, 2016, HE ADVISED THE ASSESSEE THAT PROVISIONS HAVE NOW BEEN PROVIDED IN THE STATUE TO FILE SUCH AN APPEAL AND THEREAFTER, THE ASSESSEE HAS FIL ED THE PRESENT APPEAL ON 29.11.2016. THE SAID EXPLANATION OF THE ASSESSEE IN DELAY IN ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 6 FILING THE APPEAL IS A BONAFIDE EXPLANATION AND WE SEE NO REASONS TO SEE ANY MALAFIDE IN THE SAME. FURTHER, THE ASSESSEE HA S RELIED ON THE ADVISE OF HIS CHARTERED ACCOUNTANT AND AN AFFIDAVIT IN THIS REGARD HAS BEEN FILED BY THE ASSESSEE WHICH IS NOT DISPUTED BY THE REVENUE, WE FIND THAT THERE IS A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A). THE COURTS HAVE ALSO HELD FROM TIME TO TIME THAT MERELY TECHNICALITY SHOULD NOT COME IN THE WAY OF DISCHARGE OF SUBSTANTIAL JUSTICE AND USEFUL REFERENCE CAN BE DRAWN TO THE DECISION OF THE HONBLE SUPREME COURT DECISION IN CASE OF CO LLECTOR LAND ACQUISITION VS MASTER KATIJI & OTHERS. WE ACCORDIN GLY CONDONED THE DELAY IN FILING THE APPEAL AND THE MATTER IS SET AS IDE TO THE FILE OF THE LD. CIT(A) WHO SHALL ADJUDICATE THE MATTER ON MERIT AFT ER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESU LT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 19/09/201 8. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/09/2018. * GANESH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ALACRITY EXPORTS PVT. LTD., JAIPUR ITA NO. 828 & 829/JP/2018 SHRI ALACRITY EXPORTS PVT., LTD, JAIPUR VS. ITO, JA IPUR 7 2. IZR;FKHZ@ THE RESPONDENT- ITO, TDS-2, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 828 & 829/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR