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Income Tax Appellate Tribunal, Hyderabad ‘A’ Bench, Hyderabad
Before: Shri Rama Kanta Panda & Shri Laliet Kumar
This appeal is filed by the assessee, feeling aggrieved by the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 30.05.2022 for the AY 2020-21 on the following grounds :
“1. The Order of the Ld.CIT ( A) passed U/s 250 of the Act dated 30.05.2022 is erroneous both on facts and in law. 2. The Ld.CIT ( A) erred in dismissing the appeal 3. The Ld.CIT ( A) ought to have deleted the fees levied u/s 234E of the Act for Rs.39,200/- 4. The Ld.CIT ( A) erred in not condoning the delay in filing the appeal and in not deciding the appeal on merits
5. The Ld.CIT ( A) ought to have appreciated that during the course of appellate proceedings before him also, the effect of covid - 19 prevented the appellant from submitting her replies.
6. The Ld.CIT (A) ought to have appreciated that the appellant has promptly deducted tax of Rs. 3,12,000/- u/s 195 of the Act on the payment made to non-resident and deposited the same into Government account on the very day of the transaction i.e.,on 08-04- 2019 vide challan No. 00015 of IDBI, Banjara Hills, Hyderabad. 7(a). The Ld.CIT (A) ought to have appreciated that there was no malafide intension, whatsoever, in filing the quarterly TDS statement belatedly in form no. 27Q for the quarter ended 30.06.2019 (b) The Ld.CIT (A) ought to have appreciated that but for the impugned lone transaction, there are no other transactions that are to be incorporated in the quarterly TDS statement, as is evident from the statement filed. (c) The Ld.CIT (A) ought to have appreciated that until the date of receipt of the intimation u/s 200A/206 eB of the Act with a demand of Rs. 39,200/-, the appellant was not aware of the provisions of the charge of fees u/s 234E of the Act. 8. The Id.CIT (A) ought to have appreciated that there is a reasonable cause for the delay in filing the quarterly TDS statement in form No. 27Q in the appellant's case in as much as, during the period of delay, there has been a high alert on account of Covid - 19 pandemic situation, especially in Hyderabad. 9. The appellant may add or alter or amend or modify or substitute or delete and or rescind all or any of the grounds of appeal
at any time before or at the time of hearing of the appeal.
10. The very section 234E, leading to everyday Rs.200/- penalty collection, in itself is ultra virus and confiscatory in nature.”
Facts of the case, in brief, are that assessee filed this appeal against the order dt.15.02.2020 passed by DCIT CPC-TDS, Bangalore (hereinafter referred to as “Assessing Officer”) as he received intimation u/s 200A of the Income Tax Act, 1961 wherein demand of Rs.39,200/- was raised towards late filing fee u/s 234E of the Act. Assessee disputing the above demand filed the present appeal.
Feeling aggrieved with the order dt.15.02.2020 passed by the Assessing Officer, assessee filed the present appeal which was later migrated to the Ld. CIT(A), NFAC, Delhi, who dismissed the appeal of assessee by holding as under :
“5.1 The appellant was, provided opportunity of being heard by way of issue hearing notice dated 05-05-2022 requesting the appellant to file written submissions and documents electronically on or before 12-05-2022 for necessary consideration while disposing this appeal. As there is a no reply. Hence, therefore another hearing notice dated was issued on 13- 0572022 asking the appellant to make the submissions on or before 20-05- 2022. The appellant again failed to respond to this notice as well. Thereafter, a final notice was issued On 25-05-2022 calling for submissions on or before 30-05-2022 respectively. However, the appellant has not submitted any written submission till date. In these circumstances, the appeal is decided on the basis of material available on record: 5.2 During current appellant proceedings, the appellant never came forward with his explanation to the grounds mentioned by the appellant despite being offered number of opportunities through hearing notices issued by this office. The onus lies on the appellant to prove his case before seeking relief in the appellate proceedings. On this front, appellant miserably failed. Appellant has not made any submission in order to substantiate his grounds. In these circumstances, it is deemed fit not to interfere with the assessment made by the Assessing Officer. Accordingly, the addition made by the Assessing Officer is upheld and grounds are dismissed. 5.3 Even the appeal is filed with a delay of almost two years and in his request for condonation appellant has not submitted any reason which disabled him to file the appeal in time, hence, the delay in appeal is also not condoned.
In the result, the appeal of the appellant is dismissed.”
Feeling aggrieved with the order of ld.CIT(A), assessee is now in appeal before us.
The ld. AR for the assessee had drawn our attention to the orders passed by the Assessing Officer and the ld.CIT(A). The ld.AR had submitted that Ld.CIT(A) had declined to condone the delay in filing the appeal. It was submitted that assessee was not aware of filing of statutory form 27Q and later knowing about it, he filed the same with the help of a tax consultant and that he has no knowledge of issuing penalty notice against him. Ld. AR further submitted that due to covid pandemic, assessee failed to consult any professional to give reply for the notice or to make an appeal against the order.
5.1. It was the further contention of ld.AR that on account of Covid, the assessee was not able to properly follow the appeal filed before the ld.CIT(A). He relied upon the direction of Hon’ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 wherein it was held that in cases, where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/03/2022 is greater than 90 days, that longer period shall apply.
6. Per contra, the ld.DR has raised objection for remanding the matter back to the file of lower authorities.
We have heard the rival submissions and perused the material on record. Admittedly, the ld.CIT(A) had dismissed the appeal of the assessee as it was instituted by the assessee after a period of almost two years. The assessee in its application for delay had given the plausible reasons for not filing the appeal within a period of 30 days.
Under the provisions of the Act, there is a time limit specified under the respective section of the Act for filing the appeal against the finding of the specified authority. However, the provisions of the Act also provides relaxation to the parties, if failed to file the appeal within the stipulated time, if there was the sufficient cause which prevented the assessee/party in doing so. It is the trite law that the Hon’ble Courts time and again in the series of cases have held that the expression "sufficient cause" should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor while considering the reasons for condoning the delay. In this regard, we note that the Hon’ble Madras High Court in the case of Sreenivas Charitable Trust v. Dy. CIT reported in 280 ITR 357 has held that “3. The Supreme Court in Vedabai v. Shantaram Baburao Patil [2002] 253 ITR 798held as under: "In exercising discretion under section 5 of the Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression ‘sufficient cause’, the principle of advancing substantial justice is of prime importance.
The Calcutta High Court in CIT v. Orissa Concrete & Allied Industries Ltd. [2003] 264 ITR 186 held as under : "what is really indicated in the various decisions cited and in section 5 of the Limitation Act itself, is that a litigant would be required to explain why the appeal and/or application could not be filed within the period prescribed by limitation and explain the delay for such period for the purpose of linking up the circumstances which had caused the delay during the period of limitation and thereafter." Similarly, the Allahabad High Court in Ganga Sahai Ram Swarup v. ITAT [2004] 271 ITR 512 has taken the view that liberal view ought to have been taken by the authority as the delay was only of a very short period and the appellant was not going to gain anything from it.
Further, it is also important to note that Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji and Others. (167 ITR 471) laid down certain principles for considering the condonation petition for filing the appeal which are reproduced hereunder:
“(1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
Further, as referred by ld. AR, the Hon’ble Supreme Court in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 had extended the period of limitation. In view of the above circumstances and respectfully following the direction of Hon’ble Supreme Court as well as various High Courts, we find that the order of the ld.CIT(A) is required to be set aside and the delay in filing the appeal before the ld.CIT(A) is hereby condoned. Having condoned the delay in filing the appeal by the assessee before the ld.CIT(A), we are of the opinion that the ends of justice will be met if the matter may be sent back to the file of ld.CIT(A) with a direction to decide the issue after verifying all the documents / evidence. The above said exercise be carried out after considering the documents available on record and affording the opportunities of hearing to the assessee in accordance with law. The assessee shall be at liberty to file documents, if any, as required for proving his case and the ld.CIT(A) shall consider the evidences, if any, filed by the assessee. Needless to say the ld.CIT(A) shall examine those documents / evidence filed by the assessee and also the other documents available on record. After considering the documents filed by the assessee and the submissions made by the assessee, the ld.CIT(A) shall pass a detailed speaking order dealing with the contentions of the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Open Court on 15th March, 2023.