Dhairyasheel Pralhad Pawar, Kolhapur V. DCIT, TDS-CPC, Kolhapur, Kolhapur

ITA 954/PUN/2022

AI Insights

The case involves a series of appeals by Dhairyasheel Pralhad Pawar against orders from the National Faceless Appeal Centre (NFAC), Delhi, which dismissed his appeals due to delays in filing. The appeals concerned the charging of interest under section 234E for late filing of TDS returns for the assessment years 2013-14 and 2014-15. The Tribunal noted that the legal issue of whether fees under section 234E could be imposed for periods prior to June 1, 2015, had been settled in favor of the assessee by various High Courts and earlier Tribunal orders. Despite the initial dismissal due to procedural delays, the Tribunal decided to condone the delay and adjudicate the appeals on their merits, ultimately ruling in favor of the assessee.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 126990 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-02-2023
• Assessment Year: misc
• Appeal Filed On: 26-12-2022
• Other Referred Cases: Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India and others, Jiji Varghese VS. ITO(TDS) & Ors., Vijay Vishin Meghani Vs. DCIT & Anr, Concord of India Ins. Co. Limited VS Nirmala Devi, Anil Kumar Nehru and Another vs. ACIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; TDS
• Section: 250; 234E; 200A

Judgement Text

आयकर अऩीऱीय अधधकरण “बी” न्यायऩीठ ऩ ु णे म ें । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI R.S.SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER Sl. No. ITA No(s). Name of the Applicant Name of Respondent Asst. Year Quarter Form 1-6 950/PUN/2022 to 955/PUN/2022 Dhairyasheel Pralhad Pawar 249/A/1/90/CIT(A), Shop No.5, Takshak Apartment, Near Nagalapark Arch, Nagala Park, Kolhapur– 416003 PAN : KLPDO1928D DCIT, TDS-CPC, Kolhapur. 2013-14 2013-14 2014-15 2014-15 2013-14 2013-14 Q2 Q4 Q1 Q2 Q3 Q4 26Q 26Q 26Q 26Q 26Q 26Q Assessee by : Shri Kishor B. Phadke Revenue by : Shri Ramesh P. Murkunde स ु नवाई की तारीख / Date of Hearing : 14.02.2023 घोषणा की तारीख / Date of Pronouncement : 14.02.2023 आदेश / ORDER PER BENCH: This batch of 6 appeals arise from different orders passed by the National Faceless Appeal Centre (NFAC), Delhi on 28-10-2022 dismissing all the appeals at the threshold on account of delay in filing the appeals ranging from minimum of 2627 days to maximum of 2849 days. The issue raised in all these appeals is charging of interest 2 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar u/s.234E for the quarters arising in assessment years 2013-14 and 2014-15. 2. At the outset, the Ld. AR submitted that the appeal in ITA No.955/PUN/2022 was wrongly filed in duplicate. The Ld. DR vouched for the contention. In view of the factual scenario, we dismiss the appeal in ITA No.955/PUN/2022 as having been filed in duplicate. 3. The ld. AR filed five revised Form Nos. 36 in respect of ITA Nos.950 to 954/PUN/2022, by contending that the first four original Form Nos.36 inadvertently mentioned assessment year(s) instead of Financial year(s), which should be corrected. The fifth Form No. 36 mentioned wrong amount of interest u/s 234E, which should be corrected from Rs.28,400/- to Rs.40,800/-. The ld. DR verified the necessary particulars in the revised Form Nos. 36 and accepted them to be correct. The effect to the same is given accordingly in this order. 4. Briefly stated, the facts of the case are that the assessee is engaged in the business of trading in cotton and cotton yarn. The TDS returns for the respective quarters were filed belatedly. Based on that, the Assessing Officer (AO) levied late fees u/s.234E of the Income-tax Act, 1961 (hereinafter also called `the Act’). The assessee approached 3 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar the ld. CIT(A) belatedly against the waiver of such fee. Since the appeals were time barred, the ld. CIT(A) did not condone the delay and dismissed them in limine. 5. We have heard the rival submissions and gone through the relevant material on record. It is seen that fee u/s.234E has been imposed by the AO for belated filing of the relevant statements. The assessment years involved in these 5 appeals are 2013-14 and 2014-15, which shows that the fee u/s.234E has been imposed for the delay in furnishing the statements for quarters prior to 01-06-2015. 6. Section 200A deals with processing of statements of tax deducted at source. Clause (c) of section 200A(1) was inserted by the Finance Act 2015 w.e.f. 01-06-2015 providing for the levy of fee u/s.234E of the Act. In that view of the matter, such fee u/s.234E can be levied only for the default committed after 01-06-2015 and not prior to that. The Hon’ble Kerala High Court in Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India and others (2022) 440 ITR 26 (Kerala) has affirmed the non-imposition of fee for the period prior to 01-06-2015. Similar view has been taken in Jiji Varghese VS. ITO(TDS) & Ors. (2022) 443 ITR 267 (Ker) holding that no interest u/s 234E can be imposed for the 4 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar periods of the respective A.Ys. prior to June 1, 2015. 7. Thus, it is seen that on merits the issue raised in these appeal is covered in favour of the assessee. However, the fact of the matter is that the ld. CIT(A) did not condone the delay and dismissed the appeals at threshold. The ld. AR advanced the reasons for the delay in filing the appeals belatedly before the ld. CIT(A), being, later developments in the field of law on this issue. 8. The moot point is as to whether such a long delay at the end of the ld. CIT(A) deserves condonation. At this stage, it is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Similar to the cases under consideration, in that case too, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay. 9. In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 BomHC, there was a delay of 1662 days in filing 5 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar the appeal. Such a delay was not condoned by the Hon’ble High Court. In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru vs. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. For this reason we set aside the order of the High Court; condone the delay for filing the appeal and direct to decide the appeal on merits.’ 10. Turning to the facts of the instant appeals, we find that the legal issue raised by the assessee is squarely covered in its favour for the aforesaid judgments of the Hon’ble Jurisdictional High Court, Kerala High Court and several orders passed by the Pune Benches of the Tribunal on this score. As against the situation in Anil Kumar Nehru (SC) in which the question of law was yet to be decided, we are confronted with a situation in which the question of law involved in the present set of appeals has already been decided in favour of the assessee. Under these circumstances, we condone the delay crept 6 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar before the ld. CIT(A) and allow the appeals on merits. 11. In the result, five appeals are allowed and one appeal is dismissed as withdrawn. Order pronounced in the Open Court on 14 th day of February, 2023. Sd/- Sd/- PARTHA SARATHI CHAUDHURY R.S.SYAL JUDICIAL MEMBER VICE PRESIDENT ऩ ु णे / Pune; ददनाांक / Dated : 14 th February, 2023 GCVSR आदेश की प्रतिलिपि अग्रेपिि / Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant. 2. प्रत्यथी / The Respondent. 3. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, “A” ब ें च, ऩ ु णे / DR, ITAT, “A” Bench, Pune. 4. गार्ड फ़ाइऱ / Guard File. // True Copy // आदेशान ु सार / BY ORDER, //True Copy// Senior Private Secretary आयकर अऩीऱीय अधधकरण, ऩ ु णे / ITAT, Pune. 7 ITA Nos.950 to 955/PUN/2022 Dhairyasheel Pralhad Pawar * Date 1 Draft dictated on 14.02.2023 Sr.PS/PS 2 Draft placed before author 14.02.2023 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order