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Income Tax Appellate Tribunal, JAIPUR BENCH ‘B’, JAIPUR
Before: Shri Vijay Pal Rao, JM & Shri Vikram Singh Yadav, AM vk;dj vihy la-@ITA No. 338/JP/2019
ORDER
PER VIJAY PAL RAO, JM
This appeal by the assessee is directed against the order of ld. CIT(A) -3, Jaipur dated 15-01-2019 arising from the order of levy of fees passed u/s 200A r.w.s. 234E of the Act for the Assessment Year 2016-17. The assessee has raised the following grounds. ‘’1. Under the facts and circumstances of the case the ld. CIT(A) grossly erred in law and facts by confirming the late
The ld. CIT(A) has grossly erred in law as well as on the facts of the case and imposing penalty without considering the exceptional circumstances prevailing with the assessee in late filing the TDS statements.
The ld. CIT(A) has grossly erred in law as well as on the fact of the case that initial statement was filed on time. There is no default of the provisions of Section 200(3)’’ 2.1 The ld.AR of the assessee has submitted that the assessee is a society incorporated by the order of Govt. of Rajasthan dated 3/04-03- 2015 for the reforms and restructuring of various sectors to attract private investment, to improve efficiencies, to reduce costs through public private partnership i.e. PPE etc. The assessee was a society registered under Rajasthan Society Registration Act, 1958 on 9-03-2015. Therefore, the assessee society is a body incorporated by the Govt. of Rajasthan. Further the assessee society has been formed as a non-profit motive society and to carry out the directions and instructions of the State Govt. for achieving its objects. Subsequently, the assessee society became non-functional and was wound up/ dissolved w.e.f. 15-11-2017.The Govt. of Rajasthan has acknowledged the dissolution of the assessee society. The payment in question on which assessee society deducted TDS is rent paid to Corporation owned and controlled by the Govt. of Rajasthan and it was formed by a notification of State Govt. on 17-01-1955 under the SFC’s Act, 1951 which is a Central Act. The assessee deducted the TDS of Rs. 54,248/- against payment of rent to RFC. The challan of TDS was duly deposited in time by the assessee. However, inadvertently the assessee could not file the quarterly statement relating to Quarter -2 for the financial year 2016-17 relevant to Assessment Year under consideration.
Subsequently when this mistake came to the notice of the assessee during audit, the statement containing correct detail was filed on 19-09-2017.
However, the ACIT, CPC-TDS levied late fee of Rs.54,250/- u/s 234E of the Act on account of default in not filing the TDS Statement. The ld.AR of the assessee pointed out that the ld. CIT(A) dismissed the appeal of the assessee ex-parte without passing a speaking order and decided the issue on merits. The ld.AR of the assessee submitted that the notices issued by the ld. CIT(A) were not received by the assessee society and therefore, there was no representation/ appearance before the ld. CIT(A). Thus the ld.AR of the assessee has pleaded that the assessee may be granted one more opportunity of hearing to represent the case before the ld. CIT(A). the ld.AR of the assessee for setting aside the matter to the record of the ld. CIT(A) and submitted that the ld. CIT(A) has granted number of opportunities to the assessee but nobody had appeared before the ld. CIT(A) on any of the dates of hearing fixed by the ld. CIT(A). Thus despite several notices issued to the assessee and granted 4 opportunities of hearing to the assessee by the ld. CIT(A), none appeared on behalf of the assessee.
2.3 We have considered the rival submissions as well as relevant materials available on record. It transpires from the impugned order of the ld. CIT(A) that initially hearing of the appeal was fixed on 11-09-2018 but nobody appeared on behalf of the assessee. Consequently, the hearing of the appeal was adjourned to 26-10-2018 and notice was also stated to be issued. Thereafter the hearing of the appeal was adjourned to 28-11- 2018 but nobody appeared on behalf of the assessee. Finally, the hearing was fixed on 10-01-2019 but even on the said date, nobody appeared on behalf of the assessee. Consequently, the ld. CIT(A) passed the impugned ex-parte order. Thus it is clear that the assessee was given sufficient opportunities of hearing by the ld. CIT(A). However, we find that the ld. deciding the issue on merits. The relevant finding of the ld. CIT(A) in para 4 is as under:-
‘’4. The present appeal is against the penalty order u/s 200A of the Act. I have carefully perused the grounds of appeal and the penalty order. As already discussed above, the appellant has failed to offer any explanation for submission in support of the grounds raised in this appeal nor any supporting evidences were produced by him despite adequate opportunity having been provided.
In this connection, reliance may be placed upon the decision of the Hon'ble Supreme Court in the case of H.M. Esufali H.M. Abdulali (1973) 90 ITR 271 wherein the Hon'ble Court has held that the appellate authority cannot substitute its own judgement in place of the judgement of the AO unless it is show that the judgement of the AO was biased, irrational, vindictive or capricious.
In the instant case, the appellant has not able to show that the decision of the AO was arbitrary, biased, irrational, vindictive or capricious without any basis. I find no reason to interfere with the decision of the AO.’’ Having regard to the facts and circumstances of the case and the assessee being a non-profit motive society already dissolved/ wound up, we are of the considered view that the appeal of the assessee ought to have been decided by the ld. CIT(A) on merits by passing a speaking order.
Accordingly, in the interest of equity and justice, the order of the ld. ld. CIT(A) for deciding the same afresh after granting one more opportunity of hearing to the assessee. It is made clear that if the assessee fails to appear before the ld. CIT(A) then the opportunity of hearing granted by us shall stand vacated. Thus the appeal of the assessee is allowed for Statistical purposes.
3.0 In the result, the appeal of the assessee is allowed for Statistical purposes.
Order pronounced in the open court on 20 /02/2020.