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Income Tax Appellate Tribunal, E BENCH, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER M/s Halo Technologies and Training Pvt. Ltd., B-803, Vishwamitra, Saptarishi Off LBS Marg, Mumbai - 400080 [PAN: AABCH5018B] …………… Appellant Vs Assistant Commissioner of Income Tax, TDS (CPC), Aaykar Bhawan, Sector – 3, Vaishali, Ghaziabad, Respondent ……………. U.P. - 201010 Appearance For the Appellant/Assessee : Ms. Varsha Nanwani For the Respondent/Department : Shri P.D. Chogule Date : 03.10.2023 Conclusion of hearing : 20.10.2023 Pronouncement of order
O R D E R Per Rahul Chaudhary, Judicial Member: By way of the present appeal the Appellant has challenged the order, 1. dated 10/03/2023, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘the CIT(A)’] whereby the Ld. CIT(A) had dismissing appeal preferred by the Assessee against the intimation issued under Section 200A and Section 154 of the Act for the Financial Year 2012-13 levying late fees under Section 234E of the Act.
The Appellant has raised following grounds of appeal: 2. 1. “The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961. 2. The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 without rebutting the submission made by the Appellant before it.
The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 and ignoring the fact the provisions of section 200A were amended by the Finance Act, 2015 to enable the fee computation payable u/s 234E at the time of processing of TDS statements and therefore was not applicable to the year under consideration.
The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 without giving the prior notice or opportunity to the Appellant for submitting the reasons of delay in filing the appeal before the Hon'ble Commissioner of Income Tax (Appeals).
The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 and ignoring the fact the intimation u/s 200A for Quarter 2-26Q, Quarter 3-24Q, Quarter 4-24Q was time-barred.
The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 and ignoring the decision of the Hon'ble High court in the case of Fatheraj Singhvi vs UOI (2016) 73 Taxmann.com 252 (Karn). 7. The Learned National Faceless Appeal Centre has erred in law, facts, and circumstances of the case by confirming the levy fees of Rs. 1,46,000/- under section 234E of the Income Tax Act, 1961 and ignoring the fact that the Appellant's appeal on the same ground has been allowed by the Learned NFAC for FY 2013-14 (AY 2014-15).
2 8. Your Appellant craves leave to add to, alter, amend, delete and/or modify the above grounds of appeal on or before the final date of hearing.” When the appeal was taken up for hearing, the Ld. Authorised 3. Representative for the Appellant submitted that the appeal preferred by the Appellant has been dismissed by the CIT(A) on the ground that the appeal was barred by limitation and not maintainable without confronting the Appellant and without granting the Appellant an opportunity of being heard. Per contra, the Ld. Departmental Representative supported the order passed by the CIT(A) pointing out that there was a delay of 981 days of filing the appeal. However, no reason for such delay pointed out in Form No. 35 or and the submission filed by the Appellant before CIT(A). In rejoinder, the Ld. Authorised Representative for the Appellant submitted that the Appellant had filed various rectification applications and would have been able to explain the reason in delay in filing the appeal in case the Appellant was confronted with the same. However, no such opportunity was granted by the CIT(A). In this regard, she also referred to the affidavit file before the Tribunal and submitted the Director of the Company did not have knowledge about the procedural requirements which contributed in delay in filing appeal before the Tribunal. She submitted that for the same reasons there was a delay of 9 days in filing appeal before the Tribunal which may also be condoned. The Appellant got knowledge of the impugned order having been passed by the CIT(A) after some delay. The process of taking legal advice and necessary steps for getting the appeal prepared/filed took some time. The Ld. Authorised Representative for the Appellant submitted that the Appellant has a good case on merits since the Assessing Officer did not have the 3 power to levy late fee under Section 234E of the Act at the relevant time. In view of the aforesaid, the Ld. Authorised Representative for the Appellant submitted that the order passed by the CIT(A) be set aside. 4. We have heard the rival submissions recorded hereinabove. The Appellant has explained that the Appellant company and its concerned person got the knowledge of the order passed by the CIT(A) after some time; getting information/details and seeking professional help took time which resulted into delay of 9 days in filing the appeal. Accepting the aforesaid submission of the Appellant we hold that Appellant had reasonable cause for not filing the appeal before the Tribunal in time and therefore, delay of 9 days in filing the present appeal before the Tribunal is condoned.
As regards appeal filed by the Appellant before the CIT(A), we note 5. that the appeal was instituted on 05/07/2019. Clearly, there was a delay in filing the appeal. On perusal of the order passed by the CIT(A), it appears that the Appellant was not given an opportunity to explain the delay in filing the appeal or make submission on maintainability thereof. We find merit in the contention advanced on behalf of the Appellant that the Appellant should have been granted opportunity to explain the delay and establish maintainability of the petition. Accordingly, keeping in view the overall facts and circumstances of the case, we set aside the order passed by the CIT(A) and restore the appeal to its original number before the CIT(A) for deciding the appeal afresh after giving the Appellant an opportunity of being heard. The Appellant is directed to file affidavit before the CIT(A) explaining the circumstances leading to the filing of appeal before CIT(A) who shall be at liberty to also decide the issue of condonation of delay in filing the appeal before CIT(A) and 4 its maintainability afresh as per law after giving the Appellant an opportunity of being heard. In terms of the aforesaid, Ground No. 4 raised by the Appellant is allowed while all the other grounds raised by the Appellant are dismissed as being infructuous.
In result, the present appeal preferred by the Assessee is allowed for statistical purposes.
Order pronounced on 20.10.2023. (Om Prakash Kant) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 20.10.2023 Alindra, PS
5 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : अपील र्थी / The Appellant 1. 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त/ The CIT 4. प्रध न आयकर आय क्त / Pr.CIT 5. दिभ गीय प्रदिदनदध, आयकर अपीलीय अदधकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file.
आिेश न स र/ BY ORDER, सत्य दपि प्रदि //// उप/सह यक पुंजीक र /(Dy./Asstt.