AEN (O&M) AVVNL, KHATUSHYAMJI,SIKAR vs. DCIT, CPC (TDS), GHAZIABAD

PER BENCH:

These are 3 set of 4 appeals total 12 by the assessee-Ajmer

Vidhyut Vitran Nigam Ltd. directed against the respective orders of the

ld. CIT(A), Jaipur all dated 21.06.2019 arising from adjustment made by

the AO on account of levy of late fees U/s 234E of the IT Act while

processing quarterly TDS statement filed by the assessee for the

financial year 2012-13 and 2015-16 respectively U/s 200A(1) of the IT

Act. Due to prevailing COVId-19 pandemic condition the hearing of the

appeals are concluded through video conference.

three set of fours appeals. The assessee has filed applications for

condonation of delay and has explained the cause of delay of 14 to 20

days. 2

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

delay in filing these appeals before the Tribunal. The assessee has

explained the delay that the offices of the assessee are situated in the

rural areas whereas the tax consultant and head office is in Ajmer and

therefore, in taking the advice from tax consultant and approval from

the head office took some times which has resulted the delay of 14 to

20 days in filing these appeals by the respective field offices of the

assessee. The ld. AR of the assessee has also relied upon the various

decisions on condonation of delay and submitted that a liberal approach

be adopted when such delay can result in a meritorious matter being

thrown out and defeat the cause of justice.

delay and submitted that the appeals of the assessee were dismissed by

the ld. CIT(A) due to delay in filing the appeals. Therefore, the assessee

has again repeated the same conduct of filing the appeals belatedly.

the application for condonation of delay we find that the assessee has

explained the cause of delay of 14, 17 & 20 days in filing the appeals as

respective offices of the assessee are situated in rural areas far from

the head office at Ajmer as well as the tax consultant of the assessee

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

also available in Ajmer. Thus, the assessee has explained that while

taking the advice of the tax consultant as well as approval of the

headquarter it took some times which has resulted the delay in filing

these appeals. We further note that so far as the appeals pertaining to

the financial year 2012-13 the assessee has a prima facie good case

due to the reason that those cases pertains to pre-amendment of

Section 200A(1) of the Act w.e.f. 01.06.2015 whereby the AO is given

the power to make the adjustment on accounts of late fee levy U/s

234E of the Act. Hence, in the facts and circumstances of the case and

in the interest of justice we condone the delay of 14, 17 & 20 days in

filing these appeals by the assessee.

appeals:-

“In the facts & circumstances of the case the Ld. CIT Appeals, Ajmer has erred in not admitting the appeal for LATE FEES imposed u/s 234E Under clause © of subsection 1 of 200A. 1. The assesse has Filed an appeal with Ld CIT(appeals) JAIPUR which was technically delayed . The delay in filing the appeal was due to the fact that applicant has not receive the notice by post as well as by email. and also incumbent incharge was transferred and file not found.. After ITO demand notice the applicant checked income tax site and then filed the appeal. hence the filing of the appeal was delayed. also appeal to file online necessary approvals to be taken, hence the filing appeal was delayed. 4

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

The adjustment in respect of levy of fees under section 234E was indeed beyond scope of permissible adjustments contemplated under Section 200A" ,hence hence the same should be deleted. As no Opportunity given to explain the cause of delay. 7. The learned CIT APPEALS erred in not agreeing that concealment penalty should not be imposed where an assessee acts honestly without having any mala fide intention to evade tax or where issue is controversial. 8. The learned CIT APPEALS erred in not accepting provision of section 204 of the act The law has not made any person responsible, to deposit late fee, in case of default in case of default in depositing late fee along with TDS statement. 9. In the facts & circumstances of the case the learned .CIT APPEALS erred in not allowing appeal as the delay was due to reasonable cause beyond the control of the control of asessee , hence late fee not leviable and hence the same should be deleted. 10. In the facts & circumstances of the case the learned CIT APPEALS . erred in confirming the order of AO imposing late fee without appreciating the facts & circumstances of the case and hence the same should be deleted.” 7. The main grievance of the assessee in all these appeals is that

the ld. CIT(A) dismissed the appeals of the assessee in limine without

considering the issue on merits. The ld. AR of the assessee has

submitted that the assessee filed these appeals only when it came to

know that the Assessing Officer has made adjustment on account of

late fee levy U/s 234E of the Act while processing the quarterly TDS 6

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

statement U/s 200A of the Act. Since the assessee did not receive any

notice from the AO regarding the cases were taken up for processing or

for demand of the levy. Only when the assessee came to know about

such processing and levy of late fee from the income tax site

(TRACESS) the assessee filed the appeals before the ld. CIT(A)

belatedly with application for condonation of delay. The ld. AR has

submitted that when the assessee has explained the cause of delay and

the assessee was having prima facile a good case on merits then the ld.

CIT(A) ought to have condoned the delay. Thus, the ld. AR has pleaded

that the delay in filing the appeals before of the ld. CIT(A) may be

condoned and the matters are directed to be decided on merits.

delay in filing the appeals before the ld. CIT(A). The ld. DR has further

contended that there is inordinate delay in filing all these appeals

before the ld. CIT(A) which is raising from 784 days to 1720 days

therefore, such an abnormal delay cannot be condoned on an excuse of

lack of knowledge of the assessee about the orders passed by the AO.

She has relied upon the orders of the ld. CIT(A).

material available on record. Though there were delay of 784 days to

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS)

1720 days in filing the appeals before the ld. CIT(A) however, the

appeals were filed by the assessee against processing orders U/s

200A(1) of the Act and thereby the AO made adjustment on account of

late fee levy U/s 234E of the Act. Thus, it is undisputed fact that the

processing done by the AO were not assessment proceedings wherein

the assessee was supposed to participate. when the processing was

done by the AO and adjustment was made without any prior notices to

the assessee then the impugned orders passed by the AO U/s 200A(1)

were in the back of the assessee. Further, it appears that the AO has

not issued any notice/demand notice to the assessee in physical form

but these processing orders were only available on the income site

namely TRACES. Further adjustment made by the AO for the financial years 2013-14 and 1st quarter of financial year 2015-16 pertinent to the

period prior to the amendment brought in Section 200A(1) by Finance

Act 2015 w.e.f. 01.06.2015. Therefore, the assessee has an arguable

case for those adjustment made by the AO in respect of the TDS

quarterly statement of financial year 2013-14 and first quarter of

financial year 2015-16. It is matter of the fact that the adjustment was

made by the AO only while processing quarterly TDS statement and it

was not order passed by the AO after conducting any proceedings

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS) wherein the assessee ought to have participated. Thus in these

proceedings completed by the AO in the back of the assessee and in the

absence of any physical notice on the assessee the reasons explained

by the assessee for delay in filing the appeals before the ld. CIT(A) are

found to be reasonable and bonafide. Once the reasons explained by

the assessee are factually correct and reasonable cause then the length

of the delay cannot be sole reason to decline the condonation of delay.

Accordingly, in the facts and circumstances of the case and in the

interest of justice we condone the delay in filing the appeals before the

ld. CIT(A). The impugned orders passed by the ld. CIT(A) are set aside

and the matters are remitted back to the record of the ld. CIT(A) for

deciding the same on merits after giving an appropriate opportunity of

hearing to the assessee.

In the result, the appeals of the assessee are allowed for

statistical purposes.

Order pronounced in the open court on 25/08/2020. Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 25/08/2020. *Santosh. 9

ITA No.1110 to1113 , 1116 to1122 and 1126/JP/2019 AEN (O&M) AVVNL vs. DCIT, CPC(TDS) आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- AEN (O &M) AVVL, Kanwat, Sikar. AEN (O &M) AVVL, Danta Ramgarh, Sikar. AEN (O &M) AVVL, Neem Ka Thana, Sikar. AEN (O&M) AVVL, Khatushyamji,Sikar. 2. izR;FkhZ@ The Respondent- DCIT, CPC(TDS), Ghaziabad. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 1110 to 1113 , 1116 to 1122 and 1126/JP/2019} vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत