VISWANATHA SHENOY,ERNAKULAM V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(2), KOCHI, KOCHI

ITA 34/COCH/2024

AI Insights

The case involves Shri Viswanatha Shenoy, a transport contractor, who appealed against the order of the CIT(A)-2, Kochi, which disallowed certain expenses under section 40(a)(ia) of the Income Tax Act due to non-deduction of TDS as required under section 194C. The assessee argued that the payments were covered by form 15-I, which was not filed due to oversight. The initial appeal was dismissed ex-parte as the assessee failed to appear. The ITAT considered the delay in filing the appeal, which was significantly affected by the assessee's health condition and the COVID-19 lockdown, and decided to condone the delay and remit the case back for a fresh hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 31163 (ITAT-COCHIN)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Laws Referred To: Income Tax Act, Income Tax Rules, 1962
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LEENA LAL; SNR
• Assessee Lawyers: NITHYANANDA
• Keywords: Set aside; TDS
• Section: 73; 40(a)(ia); 194C

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH : COCHIN BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI SOUNDARARAJAN K., JUDICIAL MEMBER ITA No. 34/Coch/2024 Assessment Year : 2007-08 Shri Viswanatha Shenoy, Royal Road Transports, Royal Enterprises & Agencies, North Kalamassery, Kochi – 683 104. PAN: ADFPS3849B Vs. The Deputy Commissioner of Income Tax, Circle – 2 (2), Kochi. APPELLANT RESPONDENT Assessee by : Shri Nithyananda Kammath, CA Revenue by : Smt. Leena Lal, Snr. AR Date of Hearing : 05-02-2025 Date of Pronouncement : 21-02-2025 ORDER PER SOUNDARARAJAN K., JUDICIAL MEMBER This is an appeal filed by the assessee challenging the order of the Ld.CIT(A)-2, Kochi dated 24/01/2020 in respect of the A.Y. 2007-08. 2. The brief facts of the case are that the assessee is a transport contractor and during the assessment year, he had paid hiring charges to the truck owners but he has not collected the TDS as per section 194C of Page 2 of 4 ITA No. 34/Coch/2024 the Act and therefore the AO had issued a notice proposing to disallow the expenses u/s. 40(a)(ia) of the Act. The assessee submitted that he has obtained the declaration in form 15-I as per Rule 29D of the Income Tax Rules, 1962 and by mistakenly the said forms were not filed before the authorities. The AO passed the assessment order and disallowed the expenditure u/s. 40(a)(ia) of the Act since the assessee had not deducted the TDS while making the payments. As against the said order, the assessee filed an appeal before the Ld.CIT(A)-2, Kochi and contended that the payments were covered by form 15-I and therefore the disallowance made u/s. 40(a)(ia) is not correct. But unfortunately, the assessee had not appeared before the Ld.CIT(A) when the hearing notice fixing the date of hearing on 20/01/2020 was sent to the assessee and therefore the Ld.CIT(A) had decided the issue on merits and dismissed the appeal ex-parte. Even before the Tribunal, the assessee had filed the present appeal with a delay of 1428 days and the assessee had explained the said delay by filing an application for condoning the said delay and also enclosed the medical certificate issued by the hospital to show that the assessee was prevented from filing the appeal in time. 3. First we will take up the delay condonation application for consideration and on going through the application and the affidavit filed by the assessee, it shows that the impugned order was uploaded in the portal on 20/02/2020 and the last date for filing the appeal was over on 21/03/2020 but the appeal was filed on 18/01/2023 after a delay of 1428 days. The assessee explained that when the limitation for filing the appeal starts, the covid19 pandemic also spreading and therefore the Government itself imposed a lockdown commencing from 20/03/2020. The assessee further submitted that he was affected with Parkinson’s disease which was in an advanced stage and therefore he was also bedridden quite a long time taking treatment from the hospital Sree Sudheendra Medical Mission, Kochi and therefore the assessee was not able to talk and therefore the appeal could not be filed in time. The assessee also submitted that he is aged Page 3 of 4 ITA No. 34/Coch/2024 about 73 years and he was not able to speak or attend to his personal needs without any help and therefore the delay has been occurred which is beyond his control. The assessee also furnished the medical certificate issued by the hospital in support of his submission. 4. The Ld.DR appearing for the revenue vehemently contended that the delay is abnormal and prayed to dismiss the same. 5. We have considered the application filed in support of the delay condonation and also the affidavit and the medical certificate issued by the hospital and from the said details, we understand that the assessee, being an aged person, was physically prevented from filing the appeal in time. Further, the covid19 lockdown was also imposed by the Government and the restrictions were there till 28/02/2022 and therefore as per the suomoto orders passed by the Hon’ble Supreme Court, the said periods should be excluded for calculating the limitation. If we exclude the covid19 period, then the delay is not an abnormal one since the assessee had suffered advanced Parkinson’s disease which would affect him very badly and therefore in order to render substantial justice, we are of the view that the said delay should be condoned. Moreover, the Ld.CIT(A) also not decided the appeal after hearing the assessee and therefore the merits of the issue was not decided by him by considering the supporting documents to be filed by the assessee. In these circumstances, we are allowing the application filed by the assessee to condone the delay in filing the appeal and also set aside the order of the Ld.CIT(A) which was passed ex-parte and remit the same to the file of the Ld.CIT(A) for considering the issue afresh on merits after hearing the assessee. Page 4 of 4 ITA No. 34/Coch/2024 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 21st February, 2025. Sd/- Sd/- (INTURI RAMA RAO) (SOUNDARARAJAN K.) Accountant Member Judicial Member Bangalore, Dated, the 21st February, 2025. /MS / Copy to: 1. Appellant 2. Respondent 3. CIT 4. DR, ITAT, Cochin 5. Guard file 6. CIT(A) By order Assistant Registrar, ITAT, Cochin "