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Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 1464/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh jes'k lh 'kekZ] ys[kk lnL; ,oa Jh fot; iky jko] U;kf;d lnL; ds le{k BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM vk;dj vihy la-@ITA No. 1464/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2010-11 cuke Divisional Railway Manager, A.C.I.T.(TDS), Vs. DRM Office, Near Jaipur Jaipur. Junction, Jaipur. TAN No. JPRD02777F vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 1467/JP/2018 fu/kZkj.k o"kZ@Assessment Year :2014-15 cuke Divisional Railway Manager, A.C.I.T.(TDS), Vs. DRM Office, Near Jaipur Jaipur. Junction, Jaipur. TAN No. JPRD02777F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Rajiv Sogani (CA) & Shri Rohan Sogani (CA) jktLo dh vksj ls@ Revenue by : Shri B.K. Gupta (CIT-DR) lquokbZ dh rkjh[k@ Date of Hearing : 28/01/2019 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 11/02/2019 vkns'k@ ORDER PER: R.C. SHARMA, A.M. These are the appeals filed by assessee against the two separate orders of ld.CIT(A)-3, Jaipur dated 23/10/2018 for the A.Y. 2010-11 and 2014-15 respectively in the matter of order passed U/s 201(1) and ITA 1464 & 1467/JP/2018_ 2 DRM Vs ACIT 201(1A) of the Income Tax Act, 1961 (in short the Act). Following grounds have been taken by the assessee for the A.Y. 2010-11:
“1. In the facts and circumstances of the case and in law ld. CIT(A) has erred in not condoning the delay in filing the appeal. The action of ld.CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by condoning the delay in filing the appeal.
2. In the facts and circumstances of the case and in law ld. CIT(A) has erred in not adjudicating the appeal of the assessee on merits and rejecting the same on the technical ground. The action of ld.CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deciding the appeal of the assessee on merits.
3. (a) In the facts and circumstances of the case and in law, the Id. AO has erred in creating a total demand of Rs. 3,69,81,060. The Id. AO has raised demand of Rs. 2,25,04,715 for short deduction of TDS and Rs. 1,44,76,345 towards interest on short deduction of TDS
(b) In the facts and circumstances of the case and in law, the Id. AO has erred in holding the assessee to be to be deemed in default for alleged non obtaining of the PAN numbers of respective employees and thereby holding the assessee liable to deduct TDS @ 20 percent as against the normal TDS obligation which was duly complied with by the assessee. The action of the ld. AO is illegal, unjustified, arbitrary, and against the facts of the case. Relief may please be granted by quashing the demand being illegal and without any basis.
In the facts and circumstances of the case and in law, the Id. AO has erred in applying the provisions of section 206AA whereas the same was brought to statute book by Finance Act, 2006 w.e.f. 01- 04-2010. The action of the ld.AO is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the demand being illegal. The assessee craves its right to ITA 1464 & 1467/JP/2018_ 3 DRM Vs ACIT
add, amend, or alter any of the grounds on or before the hearing.”
Common grounds have been taken by the assessee for the A.Y. 2014-15.
Rival contentions have been heard and record perused. The facts in brief are that the assessee is a government body and against the order passed by the Assessing Officer U/s 201(1) and 201(1A) of the Act, the assessee filed appeal before the ld. CIT(A), which was belated.
The ld. CIT(A) dismissed the appeal on the plea that there was a delay in the filing the appeal without any reasonable cause.
4. It was argued by the ld. AR of the assessee that the office of DRM was not aware whether any order can be passed against it and whether such order is appealable and it came to know that such orders are appealable only when the department pressed for the payment of outstanding demand. The ld AR has invited our attention to the chronological dates of communication with the department with regard to short deduction of tax. The ld AR of the assessee has also invited our attention to the internal communication of the assessee to the senior employees for submitting PAN details, internal circulation of direction by assessee with respect to deduction of tax at source, with respect to furnishing information in order to avoid penal provisions. As per the ld
ITA 1464 & 1467/JP/2018_ 4 DRM Vs ACIT AR, the assessee has tried it best to get the required details so that wrongful demand raised by the department can be cancelled.
5. In support of his request for condonation of delay, reliance was placed on the following judicial pronouncements:
(i) Motilal Padampat Sugar Mills Co. Ltd. Vs. State of U.P. (1979) 118 ITR 326 (SC)
(ii) Collector, Land Acquisition Vs. Mst. Katiji & ors. (1987) 167 ITR 471 (SC).
(iii) M/s Hossana Ministries Vs. ITO(Exemptions) TC (Appeal) No. 3 of 2017 (Mad. H.C.)
(iv) Jayvantsinh N Vaghela Vs ITO (2013) 40 taxmann.com 491 (Guj). (v) CIT Vs. Sanmac Motor Finance Ltd. (2010) 322 ITR 309 (Mad). (vi) Prashanth Projects Ltd. Vs DCIT, IT Appeal No. 192/2014 (Bom H.C.) (vii) Midas Polymer Compounds Pvt. Ltd. Vs. ACIT (ITAT Cochin Bench) (viii) M/s Lahoti Overseas Ltd. Vs DCIT (ITAT Mum Bench)
By relying on the judicial pronouncements, the ld. AR has requested that the delay in filing the appeal before the ld. CIT(A) should be condoned and the matter may be decided on merits either at the level of this Tribunal or at the level of the ld. CIT(A) by restoring back the file to the record of the ld. CIT(A).
ITA 1464 & 1467/JP/2018_ 5 DRM Vs ACIT
On the other hand, the ld CIT-DR has opposed the request of the assessee and contended that the delay can be condoned only if there is no gross negligence or deliberate inaction or lack of bona fide. Secondly, the appellant should furnish acceptable and cogent reasons sufficient to condone delay. These are the pre-requisites for condoning delay. Thus, touchstone for condonation of delay is 'sufficiency/reasonableness of the cause'. Filing of an appeal in time is a normal judicial process, whereas filing a belated appeal is an abnormal step. It is said that extraordinary remedies need existence of extraordinary circumstances. Therefore, the appellant has to prove that abnormal circumstances really and factually existed in its particular case. It may be mentioned that in the case of J.B. Advani & Co. (P.) Ltd. v. CIT [1969] 72 ITR 395, the Hon'ble Apex Court had held that explanation of delay, for the entire period is necessary. In other words, what is expected of the appellant in such matters is to show that delay was occasioned due to some sufficient cause. The cause pleaded should not only be a probable one but it should be real and sufficiently reasonable. It would not be any sort of assertion that would amount to sufficient cause and would justify the condonation of delay. The cause pleaded must fit in the facts and circumstances of the given case and the explanation offered regarding the delay occasioned by such cause should appeal to reasons so as to ITA 1464 & 1467/JP/2018_ 6 DRM Vs ACIT get judicial approval. In short, in matters of delay it is neither practicable nor desirable to explain minute-to-minute/hour-to-hour delay, but delay has to be explained.
Reliance was also placed on the following judicial pronouncements by the ld CIT-DR:
(i) In the case of K.G.N.M.M.W. Educational Research & Analysis Society Vs ITO [2015] 54 taxmann.com 329 (Jaipur - Trib.), it has been held by the Hon'ble Jaipur Tribunal that:
“In our considered view that the condonation petitions filed by the assessee and material available on the record, fail to invoke any confidence, fail to explain reasonable and sufficient cause for condonation of long delay of 347 days in filing these appeals . The assessee has to come clean with all the relevant facts, which happened in the period of one year. The assessee has to explain all the events and be specific in the dates. The depositions made in the C.A. affidavit remain uncorroborated and there is no affidavit from the said Shri Malik Parvej in support of the affidavit of C.A.. Thus, the vague affidavit given by the C.A. remains uncorroborated and unreliable. In the entirety of facts and circumstances of the case, we decline to condone the delay of 347 days in filing these appeals." It may be mentioned that in a recent decision dated 13.11.2018 (ii) in the case of Catholic Syrian Bank Ltd. Vs DCIT in to 345/Coch/2018 13.11.2018, the delay was not condoned by the Hon’ble Tribunal by observing that:
“The reason as come out from the condonation petitions filed by the assessee, as stated earlier, is that there was transfer of the officer who was handling the issue. We cannot accept such proposition as it cannot be considered as good and sufficient reason to condone the delay. It was submitted that the delay is to be condoned since the issue on merit covered in favour of the assessee. This submission
ITA 1464 & 1467/JP/2018_ 7 DRM Vs ACIT ignores the fact that the object of the law of limitation is to bring certainty and finality to litigation. This is based on the Maxim Interest reipublicae sit finis litium i.e. for the general benefit of the community at large, because the object is every legal remedy must be alive for a legislatively fixed period of time. The object is to get on with life, if you have failed to file an appeal within the period provided by the Statute. It is for the general benefit of the entire community so as to ensure that stale and old matters are not agitated and the party who is aggrieved by an order can expeditiously mover higher forum to challenge the same, if he is aggrieved by it.
As observed by the Apex Court in many cases, the law assist those who are vigilant and not those who sleep over their rights as found in the Maxim Vilil anti bus Non Dormientibus Jura Subveniunt”. In our opinion, merely because the assessee is not vigilant, it cannot follow that the assessee is bestowed with a right to the delay being condoned. We are conscious of the fact that the period of limitation should not come as an hindrance to do substantial justice between the parties. However, at the same time, a party cannot sleep over its right ignoring the statute of limitation and without giving sufficient and reasonable explanation for the delay, except its appeal to be entertained merely because the assessee is a Bank.
Appeals filed beyond a period of limitation have been entertained by us where the delay has been sufficiently explained such as in cases of bonafide mistake. Thus the assessee should be well aware of the statutory provisions and the period of limitation and should pursue its remedies diligently. It cannot expect their appeals be entertained because they are after all the assessee, notwithstanding the fact that delay is not sufficiently explained. Hence, the delay is not condoned and the appeals are unadmitted.
(iii) It may be mentioned that the Hon'ble ITAT, Hyderabad vide its order dated 09.09.2016 in the case of MiddiNarsaiah vs. DCIT [2016] 48 CCH 54 (Hyd. Trib.) has considered a number of judicial pronouncements while rejecting the application for condonation of delay and held as under:
ITA 1464 & 1467/JP/2018_ 8 DRM Vs ACIT
We are of the view that the reasons mentioned in the petition for condonation are not convincing as the reasons mentioned for delay in filing the appeal before the ITAT are that the assessee's attention was diverted due to criminal cases and pre-occupation in the business activities. The criminal proceedings were over by 06/03/2013 but the delay beyond this day is pure negligence on the part of the assessee, the delay of which cannot be condoned as per the reasons mentioned in the petition. In this connection, we refer to the following judgments:
………
4.5 Since, in the present case, the assessee could have very well avoided the delay by exercising of due care and attention at least after the month of March'2013, we are of the considered opinion that there exists no sufficient and reasonable cause for the delay of an inordinate period of 395 days and applying the principle laid down by Hon'ble Courts in the aforesaid decisions, we are not inclined to condone the said delay in filing the appeal before us. Accordingly, the appeal filed by the assessee is dismissed as barred by limitation.
In the result, the appeal of the assessee is dismissed in the manner as indicated above.
Reliance is also placed on the following judicial pronouncements: 96 taxmann.com (496) (SC) 50 taxmann.com (446) Raj 180 taxman 476 (SC)
Therefore, in view of the above discussion, it was submitted by the ld. CIT-DR that since the assessee has failed to bring on record any sufficient cause for condonation of inordinate delay of about 31 months in filing appeal before the Ld. CIT(A), hence, the relevant ground of appeal may kindly be rejected and the appeal of the assessee be dismissed, accordingly.
ITA 1464 & 1467/JP/2018_ 9 DRM Vs ACIT
We have considered the rival contentions and carefully gone through the orders of the authorities below. We had also deliberated on the judicial pronouncements referred by the lower authorities in their respective orders as well as cited by the ld. AR and ld. DR during the course of hearing before us in the context of factual matrix of the case with regard to condonation of delay. We had also carefully gone through the evidences placed on record for the efforts done by the assessee for furnishing requires returns which includes the internal communication of the assessee to the senior employees for submitting PAN details, intimation by the Income tax Department for deputing personnel for verification of TDS and TCS details etc. After going through the detailed reasons given for delay in filing the appeal before the ld. CIT(A), we observe that there was a reasonable and bonafide cause for delay. The Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst. Katiji & ors. 167 ITR 0471 has observed as under:
“The legislature has conferred the power to condone delay by enacting s. 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice—that being the life-purpose of the existence of the institution of Courts. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even- handed manner. There is no warrant for according a step-motherly
ITA 1464 & 1467/JP/2018_ 10 DRM Vs ACIT treatment when the "State" is the applicant praying for condonation of delay. In fact, experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherent bureaucratic methodology imbued with the note-making, file- pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community does not deserve a litigant non grata status. The Courts, therefore, have to be informed of the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits.”
It is very clear from the above verdict of the Hon'ble Supreme Court that “sufficient cause” for the purpose of condonation of delay should be interpreted with a view to even-handed justice on merits in preference to approach which scuttles a decision on merits. Further the more power to condone the delay is conferred with a view to enable the courts to do substantial justice to litigants by disposing of the cases on merits. Considering the totality of the facts and circumstances of the case, we condone the delay and matter is restored back to the file of the ld. CIT(A) for deciding on merit after giving due opportunity of hearing to the assessee.
ITA 1464 & 1467/JP/2018_ 11 DRM Vs ACIT 11. In the result, appeals of the assessee are partly allowed for statistical purposes only. Order pronounced in the open court on 11th February, 2019.
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