Valley Iron & Steel Co. Ltd., New Delhi V. ACIT, New Delhi

ITA 940/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74324 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 30-12-2013
• Assessment Year: 2011-2012
• Appeal Filed On: 15-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S MEENA
• Section: 234B; 115JB

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI J. S REDDY, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER I TA NO. 940 /DEL/ 2013 (ASSESSMENT YEAR: 2011 - 12) VALLEY IRON & STEEL CO. LTD, C/O. RAJ KUMAR & ASSOCIATES, CA, 4435/7, ANSARI ROAD, DARYA GANJ, NEW DELHI AAACV4632N VS. ACIT CENTRAL CIRCLE - 5, JHANDEWALAN, NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : RAJ KUMAR, FCA RESPONDENT BY: R.S. MEE N A, CIT DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XXXI, NEW DELHI DATED 22.01.2013 FOR THE ASSESSMENT YEAR 2011 - 12 . 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, LD CIT(A) ERRED IN LAW AS WELL AS ON MERITS AND DISMISSING THE APPEAL AS NOT ADMITTED AND NONEST ON THE GROUND OF NON - PAYMENT TAX DUE ON INCOME RETURNED U/S 249(4). 2. THAT THE PROVISIONS OF SEC. 249 (4) ARE NOT APPLICABLE FOR THE PURPOSES OF ADMISSION OF APPEAL FILED BEFORE CIT(A) AGAINST LEVY OF PENALTY U/S 140A(3)/221(1) OF THE I.T. ACT. 3. THAT WITHOUT PREJUDICE, AFTER PAYMENT OF TAX DUE ON THE INCOME RETURNED, THE LD CIT(A) BE PLEASE DIRECTED TO ADMIT AND ADJUDICATE THE APPEAL. 4. THAT WITHOUT PREJUDICE, ON MERITS, THE PENALTY HAS BEEN WRONGLY LEVIED. 5. THAT WITHOUT PREJUDICE, IN ANY CASE, PENALTY OF RS. 6,42,85,283/ - IS HIGHLY EXCESSIVE AND UN REASONABLE. 3. APROPOS GROUND FOR NON - PAYMENT OF TAX DUE ON INCOME RETUR NED U/S 249(4) OF THE INCOME TAX ACT, 1961(HEREINAFTER THE ACT) 4. BRIEF FACTS OF THE CASE IS THAT T HE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011 - 12 ON 24.11.2010, DECLARING NIL INCOME. THE ASSESSEE COMPANY DECLARED INCOME U/S 115JB OF THE ACT TO TH E TUNE OF RS. 29,38,05,621/ - AND COMPUTED A TAX LIABILITY OF RS. 6,49,53,619/ - PAYABLE U/S 140A(1) OF THE ACT INCLUDING INTEREST U/S 234B AND 234C OF THE ACT . THE ASSESSEE COMPANY DID NOT PAGE NO. 2 I TA NO. 940 /DEL/ 2013 MAKE THE SAID PAYMENT U/S 210 OF THE ACT AND AFTER CLAIMING CREDIT OF RS. 5,74,214/ - ON THE TDS & TCS, A TOTAL ADMITTED TAX LIABILITY WAS SHOWN AS PAYABLE AT RS. 6,42,85,283/ - . THE ASSESSEE DID NOT MAKE THE PAYMENT OF ADMITTED TAX LIABILITY U/S 140A OF THE ACT AND FILED THE RETURN OF INCOME SHOWI NG TAX AMOUNT PAYABLE AT RS. 6,42,85,283/ - ON ACCOUNT OF SELF ASSESSMENT TAX. THE AO, A FTER SERVING SHOW - CAUSE NOTICE DATED 22.11.2011 AND AFTER CONSIDERING THE WRITTEN REPLY TO IT BY THE ASSESSE E , IMPOSED A PENALTY WHICH IS EQUAL TO THE AMOUNT ADMITTED AS SELF ASSESSED TAX I.E . (RS. 6,42,85,283 ) U/S 140A(3) OF THE ACT. 5. AGGRIEVED BY THE SAID PENALTY THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A). DURING THE APPELLATE PROCEEDINGS , THE LD CIT(A) TOOK NOTE OF THE FACT THAT THE ASSESSEE HAD NOT PAID THE TAX DUE ON THE INCOME RETURNED BY HIM. THEREFORE, A NOTICE WAS ISSUED ON 11.01.2013 TO THE APPELLANT, TO SHOW CAUSE, AS TO WHY THE APPEAL SHOULD NOT BE ADMIT TED FOR NON - REMITTANCE OF TAX DUE ON THE RETURNED INCOME AT THE TIME OF FILING APPEAL AS PER SEC. 249(4) OF THE ACT. AFTER PERUSING THE REPLY OF THE ASSESSEE THE LD CIT(A) RECORDED A FINDING TO TREAT THE APPEAL AS NOT ADMITTED AND DISMISS ED THE APPEAL FOR STATISTICAL PURPOSES. 6 . AT THE OUTSET THE LD AR SUBMITTED THAT AN AMOUNT OF RS. 4,50,000/ - WAS REMITTED BEFORE FILING THE APPEAL BEFORE THE LD CIT(A) AND THUS ONLY RS. 1,29 82 716 / - WAS OUTSTANDING OUT OF SELF ASSESSED TAX LIABILITY AND RS. 60,43,028/ - WAS IN FACT OUTSTANDING ON ACCOUNT OF INTEREST U/S 234B. ACCORDING TO THE LD AR THE LD CIT(A) DISMISS ED THE APPEAL ON THE GROUND OF NON FULFILLMENT OF CONDITION OF SECTION 249(4)(A) OF THE ACT AND LD AR CONTENDED THAT SECTION 249 (4) IS NOT APPLICABLE IN THE CASE OF THE APPELLANT AGAINST THE ORDER U/S 140A(3) READ WITH SECTION 221 AND HE REFERRED TO VARIOUS CASES: (I). SATYAM ENTERPRISES VS. JCIT 227 ITR 182 (MUM.), CITVS. MANOJ KUMAR BERIWAL (2008) 9 DTR 255(BOM), SHREENIWAS AND SONS VS. ITO 96 ITR 562 (CAL), CIT VS. P. B. HATHIRA MANI 207 ITR 483 (BOM) ; AND IT WAS CONTENDED BY LD AR THAT THE TAX TO THE TUNE OF RS. 5,79,82,716 / - HAS ALREADY BEEN REMITTED , THEREFORE, ACCORDING TO HIM THE COMPLETE TAX HAS BEEN PAID. ON THE SAID FACTUAL BASIS, THE LD AR PLEADED THAT THE APPEAL MAY BE RESTORED BACK TO LD CIT(A) FOR ADJUDICATION ON MERITS AND CITED THE FOLLOWING CASES : CIT VS. K. SATISH KUMAR SINGH 209 TAXMAN 502 (KAR), BHUMIRAJ CONSTRUCTIONS VS. ADDL. CIT 135 TTJ (MUM). THE LD DR RELIED ON THE LD CIT(A)S ORDER. PAGE NO. 3 I TA NO. 940 /DEL/ 2013 7 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS AND THE CASE LAWS CITED BY THE PARTIES . AS PER THE VERSION OF THE ASSESSEE, IT HAS REMITTED THE SELF ASSESSED TAX, THEREFORE THE LD CIT(A) MAY ADMIT AND ADJUDICATE THE APPEAL ON MERITS. IN SHAMRAJ MOORJANI VS. DY. CIT(HYD) REPORTED IN (2005) 93 TTJ (HYD) 927, AFTER REFERRING TO CIT VS. FILMISTAN LTD. 42 ITR 163 (SC); ANIL SINGHI VS. A.CIT (2003) 85 ITD 73 (DEL) SB MELA RAM & SONS VS. CIT 29 ITR 607 (SC) IN WHICH ONE OF US WAS PARTY IN HYDERABAD B BENCH HAS HELD T HAT: - 30 IN THE LIGHT OF THE DECISIONS CITED ABOVE, THE JUDICIAL VIEW APPEARS TO BE THAT THE APPEALS BEFORE THE CIT(A) SHOULD BE CONSIDERED AS HAVING BEEN PROPERLY FILED ON THE DATE OF PAYMENT OF ADMITTED TAXES ON RETURNED INCOME, THOUGH THE MEMORANDUM OF APPEAL WAS PRESENTED WITHIN THE TIME AND ALL THAT REMAINS FOR CONSIDERATION BEFORE THE CIT(A) IS WHETHER THE DELAY CAN BE CONDONED OR NOT. 8. IN THE LIGHT OF THE SAID DECISION, WE ARE OF THE CONSIDERED OPINION THAT THE DATE OF REMITTANCE OF SELF ASSESSED TAX BY THE ASSESSEE AS THE DATE OF REMOVAL OF DEFECT IN FILING THE APPEAL AND IF ANY DELAY HAPPENED, IT NEED TO BE EXPLAINED BY THE ASSESSEE AND IF THE LD CIT(A) IS SATISFIED WITH THE EXPLANATION MAY CONDONE THE DELAY AND ADJUDICATE THE APPEAL ON MERITS. 9. IN THE RESULT, WE SET ASIDE THE ORDER OF THE LD CIT(A) AND DIRECT THE LD CIT(A) TO ACT AS DIRECTED IN PARA 8 ABOVE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 4 . 03 .2014. - S D / - - S D / - ( J. S REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 4 / 03 / / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI