KEDAR ASSOCIATES ,PUNE V. TDS WARD 2 , PUNE

ITA 1531/PUN/2024

• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 23-07-2024

Judgement Text

" \nIN THE INCOME TAX APPELLATE TRIBUNAL \nPUNE BENCH “A”, PUNE \n \nBEFORE SHRI R. K. PANDA, VICE PRESIDENT \nAND \nSHRI VINAY BHAMORE, JUDICIAL MEMBER \n \nआयकर अपील सं. / ITA Nos.1530 to 1533/PUN/2024 \nिनधाᭅरण वषᭅ / Assessment Years : 2013-14 & 2014-15 \nKedar Associates, \n105A Narayan Peth Off Lakmi \nRoad, Pune- 411030. \nPAN : AABFK6598A \n Vs. \nITO, TDS Ward-2, Pune. \n \nAppellant \n \nRespondent \n \n \nआदेश / ORDER \n \nPER VINAY BHAMORE, JM: \n \nThe above captioned four appeals filed by the assessee are \ndirected against the separate orders of Ld. CIT(A)/NFAC dated \n13.04.2023 for the assessment years 2013-14 & 2014-15 \nrespectively. \n2. \nSince identical facts and common issues are involved in all \nthe above captioned four appeals of the assessee, therefore, we \nproceed to dispose of the same by this common order. \nAssessee by \n: \nShri Sharad A. Vaze \nRevenue by \n: \nShri Ramnath P. Murkunde \n \n \n \nDate of hearing \n: \n13.11.2024 \nDate of pronouncement \n: \n29.11.2024 \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n2\n3. \nAt the outset, we find that there is delay of 400 days in filing \nof these appeals. Ld. AR furnished an affidavit explaining the \nreasons of delay in filing of these appeals. We are satisfied with \nthe reasons mentioned in the application for condonation of delay \nwhich is duly supported by an affidavit. Ld. DR raised no serious \nobjection against the delay condonation request made by the \nassessee. Accordingly, the delay of 400 days in filing of these \nappeals is condoned and the appeals are admitted for adjudication. \n4. \nFirst, we shall take up the appeal of the assessee in ITA \nNo.1530/PUN/2024 for A.Y. 2013-14 (Quarter 2) for adjudication. \n \nITA No.1530/PUN/2024, A.Y. 2013-14 : \n5. \nThe appellant has raised the following grounds of appeal :- \n“1. \nOn the basis of facts and circumstances of the case, it is prayed \nthat the delay of 390 days in filing the present appeal be \ncondoned. \n \nAn affidavit explaining the reasons for delay is enclosed with \nthis appeal. \n2. \nOn the basis of facts and circumstances of the case and as per \nlaw, the Commissioner of Income Tax, (Appeals) of National \nFaceless Appeal Centre, Delhi has erred in confirming the fine \nof Rs.54,800/- u/s 234E for the period prior to 01st June, 2015. \n3. \nThe appellant craves leave to add, alter, omit or substitute any \nof the grounds at the time of hearing of the appeal.” \n \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n3\n6. \nThe facts of the case, in brief, are, that the assessee is a \npartnership firm liable to deduct TDS & also required to file \nquarterly TDS returns in form 26Q for the relevant period. The \nassessee filed Quarterly TDS return with a delay of 274 days \naccordingly CPC (TDS), Ghaziabad has levied fees u/s 234E at the \nrate of Rs.200 per day while processing the return electronically on \n23.11.2013. This intimation u/s 200A of the IT Act dated \n23.11.2013 issued by the CPC (TDS), Ghaziabad for the Q2 of \nfinancial year 2012-13 was claimed to be not received by the \nassessee and it was contended that the fact of passing of the above \nimpugned order only came in the knowledge of the assessee when \nletter of demand/justification report was downloaded by him from \nTRACES portal. On the basis of this justification report an appeal \nwas filed belatedly before Ld. CIT(A)/NFAC. \n7. \nAfter considering the reply, Ld. CIT(A)/NFAC refused to \ncondone the delay of 2965 days in filing of first appeal and \ndismissed the appeal without admitting the same. Without \nprejudice to above, it was also observed by Ld. CIT(A)/NFAC that \nappeal is filed against order passed u/s 200A but no such order is \nfiled along with Form 35 appeal memo. But only the default \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n4\nsummary which only mentions the details of various demand \npending in case of the assessee has been filed which is not an order \npassed by the Assessing Officer against which an appeal can be \nfiled. As the appellant is required to file the copy of the appealable \norder against which the appeal has been filed and in absence of the \nsame the appeal becomes defective liable to be rejected. \nAccordingly, with this observation Ld. CIT(A)/NFAC held that in \nthe absence of copy of appealable order the appeal is invalid and \nheld to be legally not maintainable. It is this order against which \nthe assessee is in appeal before this Tribunal. \n8. \nLd. AR appearing for the assessee submitted before us that \nthe provisions of section 200A were inserted by only w.e.f. \n1.6.2015 by the Finance Act, 2015 and no late fee u/s 234E can be \nlevied prior to insertion of provisions of section 200A of the IT \nAct. Ld. AR further submitted that Ld. CIT(A)/NFAC ought to \nhave condoned the delay, as the appellant had shown the sufficient \ncause for delay in filing the appeal. \n9. \nLd. DR appearing from the side of the Revenue placed heavy \nreliance on the orders passed by the subordinate authorities and \nrequested to confirm the same. \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n5\n10. We have heard Ld. Counsels from both the sides and perused \nthe material available on record. It is the contention of Ld. \nCounsel of the assessee that the assessee has not received any \norder/intimation u/s 200A and therefore he was unable to file first \nappeal \nwithin \nprescribed \ntime \nlimit \nand \ntherefore \nLd. \nCIT(A)/NFAC ought to have condoned the delay. Now it is the \nsubmission of the assessee that in 2024 the copy of \nintimation/order has been obtained and produced before the Bench \nwhich may kindly be considered. But at the same time we also \nfind that in first appeal memo Form 35 the assessee himself \nmentioned the fact about filing of rectification letter on 12.07.2017 \nagainst the levy of fees u/s 234E before Income Tax Officer, TDS-\n2, Pune which itself contradicts the statements of the appellant-\nassessee. Accordingly, we find that the appellant-assessee was \nalready in receipt of intimation about levy of fees u/s 234E \non/before 12.07.2017 when rectification letter was furnished by \nhim. Hence we do not find any substance in the contention of the \nassessee that he was unaware with the demand and intimation u/s \n200A was not received by him. In addition to above fact, we also \nfind that an identical issue has been decided by the Tribunal in the \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n6\ncase of sister concern of the assessee firm i.e. Kedar Infrastructure \nvs. ITO in ITA Nos.228 to 233/PUN/2023 order dated 05.04.2023, \nwherein, the Tribunal dismissed the appeal of the assessee and \neven the Miscellaneous Application against the above order filed \nby the assessee was also dismissed in March, 2024. The relevant \nparagraphs of the order of the Tribunal in the case of Kedar \nInfrastructure (supra) are reproduced hereunder :- \n \n“Findings and Analysis: \n3. \nIn this case the assessee has filed an appeal before the \nLd.CIT(A) against “a letter” issued by the Assessing Officer(AO) with \nreference to recovery of demand. We specifically asked the ld.AR, \nwhether assessee had filed copy of order under section 200A before \nthe ld.CIT(A). The ld.AR admitted that assessee had filed an appeal \nagainst letter of the AO and justification report, downloaded from the \nsystems. The ld.AR also admitted before us that he has not filed any \ncopy of order under section 200A either before the ld.CIT(A) or \nbefore the Hon’ble ITAT. The ld.AR admitted that he has merely filed \ncopy of the justification report downloaded from the Income Tax \nSystems. Thus, in this case, it is an admitted fact that assessee has \nfiled an appeal before the ld.CIT(A) against a letter issued by AO \nregarding recovery. Section 246A of the Income Tax Act specifies the \norders against which appeal can be filed before the ld.CIT(A). \nRecovery Letter issued by the AO or the justification report does not \nform appealable orders mentioned under section 246A of the Act. \nTherefore, we agree with the ld.CIT(A) that appeal of the assessee \nwas not maintainable and it was an infructuous appeal. In these facts \nand circumstances of the case, the order of the ld.CIT(A) dismissing \nthe appeal of the assessee as infructuous, not maintainable is upheld. \nSince the ld.CIT(A) has dismissed the appeal of the assessee as not \nmaintainable, the ld.CIT(A)’s observations regarding merits of the \ncase are outside the scope of the order. We do not intend to comment \non the merits of the case. \n3. \nAccordingly, Ground No.1 of the assessee is dismissed. \nGround No.2 : \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n7\n4. \nGround No.2 is regarding the merits of the case. No order \nunder section 200A has been filed before us. No order under section \n200A was filed before the ld.CIT(A). In the absence of basic \ndocument i.e. order under section 200A, we cannot comment on the \nmerits of the case. Therefore, Ground No.2 is dismissed as not \nmaintainable. \n5. \nGround No.3 is general in nature and needs no adjudication, \nhence, ground no.3 is dismissed. \n6. \nIn the result, appeal of the assessee in ITA No.228/PUN/2023 is \ndismissed.” \n \n11. Respectfully following the above decision of the Tribunal in \nthe case of Kedar Infrastructure (supra) and in the light of the fact \nthat in the year 2017 itself the assessee was already in receipt of \ninformation that such an order imposing fees u/s 234E has been \npassed, we do not find any infirmity in the order passed by Ld. \nCIT(A)/NFAC dismissing the appeal of the assessee. Thus, the \ngrounds of appeal filed by the assessee are dismissed. \n12. In the result, the appeal filed by the assessee in ITA \nNo.1530/PUN/2024 for A.Y. 2013-14 is dismissed. \n \nITA Nos.1531 to 1533/PUN/2024, \nA.Ys. 2013-14 & 2014-15 : \n \n \n13. Since the facts and issues involved in remaining three appeals \nof the assessee for the assessment years 2013-14 & 2014-15 are \nidentical to the facts of the case for assessment year 2013-14 in \n\n \n \nITA Nos.1530 to 1533/PUN/2024 \n \n \n \n \n8\nITA No.1530/PUN/2024, therefore, our decision in ITA \nNo.1530/PUN/2024 for A.Y. 2013-14 shall apply mutatis mutandis \nto remaining three appeals of the assessee in ITA Nos.1531 to \n1533/PUN/2024 for A.Ys. 2013-14 & 2014-15. Accordingly, the \nremaining three appeals of the assessee in ITA Nos.1531 to \n1533/PUN/2024 for A.Ys. 2013-14 & 2014-15 are dismissed. \n14. To sum up, all the above captioned four appeals of the \nassessee are dismissed. \nOrder pronounced on this 29th day of November, 2024. \n \n \n Sd/- \n \n \n Sd/- \n (R. K. PANDA) \n \n \n (VINAY BHAMORE) \n VICE PRESIDENT \n \n JUDICIAL MEMBER \n \nपुणे / Pune; ᳰदनांक / Dated : 29th November, 2024. \nSujeet \nआदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : \n1. \nअपीलाथᱮ / The Appellant. \n2. \nᮧ᭜यथᱮ / The Respondent. \n3. \nThe Pr. CIT concerned. \n4. \nिवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, \nपुणे / DR, ITAT, “A” Bench, Pune. \n \n5. \nगाडᭅ फ़ाइल / Guard File. \n आदेशानुसार / BY ORDER, \n \n// True Copy // \n Senior Private Secretary \n \n \n \n आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune. \n"