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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ : NEW DELHI
Before: SHRI O.P. KANT & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER :
Appellant, Boysen India Limited (hereinafter referred to as ‘the Revenue’) by filing the present appeal sought to set aside the impugned order dated 31.01.2018 passed by the Commissioner of Income-tax (Appeals)-I, Noida qua the assessment year 2016-17 (Q3) on the grounds inter alia that :-
“1. The Learned CIT (Appeals)-I has erred in dismissing the appeal without providing due and reasonable opportunity to the assessee of being heard and made representation. The action of the Learned CIT (Appeals)-I is arbitrary, unjustified and against concept of natural justice and equity as well as against the facts of the case.
2. The Learned CIT (Appeals)-I has erred in confirming the assessment order as passed by the Learned ACIT-1 levying the late fee u/s.234E of the IT Act of Rs.21,200/- for the quarter ended 31.12.2015 which is against the concept of natural justice and equity as well as against the facts of the case.”
Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessee company has been filing income-tax and TDS return regularly. During the third quarter ending 31.12.2015 i.e. from 01.10.2015 to 31.12.2015, the assessee company has provided fee for technical services payable to M/s.
Friedrich Boysen GmbH & Co. KG., Germany who did not have Permanent Account Number. Assessing Officer (AO) noticed that as per Form No.15CB obtained from its statutory auditors, the company was required to deduct tax at source at 10% as per Para 2 of Article No.12-Royalties and Fees for Technical Services of DTAA between India & Germany. However, while uploading the TDS return, the rate was automatically got changed to 20% instead of 10% as applicable in this case. Assessee company could not file the return within stipulated time. Consequently, Central Processing Cell has imposed late filing fee of Rs.21,200/- u/s 234E of the Income-tax Act, 1961 (for short ‘the Act’). For AY 2016-17, assessee has been held in default for not complying the provisions of TDS and determined tax demand of Rs.39,600/- for Quarter-2 and Rs.21,200/- for Quarter-3.
Assessee carried the matter before the ld. CIT (A) by way of filing appeal who has dismissed the appeal. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
Assessee has not preferred to put in appearance despite issuance of the notice and consequently, we proceeded to decide the present appeal with the assistance of the ld. Senior Departmental Representative as well as on the basis of documents available on the file.
We have heard the ld. Senior Departmental Representative for the revenue to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Ld. CIT (A) decided the appeal ex-parte against the assessee for non-prosecution without going into the merit on the ground that on the date fixed for hearing viz. 05.06.2017, 30.08.2017, 31.10.2017 & 06.11.2017, none appeared on behalf of the assessee.
However, perusal of the impugned order passed by the ld.CIT (A) apparently goes to prove that it is not brought on record if assessee company was ever served in this case. Merely fixing up the case for hearing without proper service of notice is not permissible under law. So, to decide the issue once for all, adequate opportunity of being heard is required to be given to the assessee. Consequently, impugned order passed by the ld. CIT (A) is set aside to be decided afresh by the ld. CIT (A) after providing an opportunity of being heard to the assessee.
Resultantly, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 11th day of August, 2021.