HOMES AT LEISURE LLP,GURGAON vs. DCIT - CPC, BANGALORE

ORDER PER O.P. KANT, AM:

This appeal by the assessee is directed against order dated 20/06/2019 passed by the learned Commissioner of Income-tax (Appeals)-1, Gurgaon [in short ‘the Ld. CIT(A)’] for assessment year 2016-17 against the order passed under section 143(1) of the Income-tax Act, 1961 (in short ‘the Act’) by the Deputy Commissioner of Income-tax, Central Processing Centre, Banglore [hereinafter referred to as ‘the Assessing Officer’]. The Ld. CIT(A) has dismissed the appeal on account of delay of 20 months, which has not been condoned by him. The grounds raised by the assessee are reproduced as under:

1. That, on facts and circumstances of the case and in law, Ld. Commissioner of Income Tax (Appeals) [herein after referred to as “Ld. CIT(A)”] fails to consider the cause for delay in filing the appeal that has been submitted and also explained by the Appellant in the course of Appellate Proceedings. The CIT(A) has erred in rejecting the condonation of delay in fding the appeal, although there was a sufficient and reasonable cause for the delay in filing.

3. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in disregarding the provisions of Rule 37BA of the Income Tax Rules, 1962 read with Section 199 of the Income Tax Act, 1961, and thereby upholding the disallowance of credit the TDS of Rs. 1,44,167/- for the assessment year 2016-17, the assessment year for which corresponding income is assessable. 4. Without prejudice to the above grounds of appeal

, the Appellant submit that, the credit of TDS of Rs. 1,44,167/- should be allowed in the year in which TDS was deducted i.e. here in the present case, in Assessment Year 2015-16, if the same is not allowed in the year in which income is offered (i.e. here in the Assessment Year 2016-17).

5. That the appellant craves leave to add, alter, amend or vary any of the ground either at or before the hearing of the appeal.

2. Briefly stated facts of the case are that the assessee filed return of income 31/07/2016, declaring total income of ₹4,28,020/- and claimed credit of Tax Deducted at Source (TDS) of ₹ 1,44,167/-. According to the assessee, the payee i.e. Mahindra Homes Private Limited, has shown above TDS in the statement corresponding to assessment year 2015-16 and consequently, credit of this TDS is being reflected in form No. 26AS of the assessee for assessment year 2015-16. The Assessing Officer while passing order under section 143(1) dated 27/09/2016 did not allow the claim of credit of said TDS amount of ₹ 1,44,167 /- and demand of ₹ 1,45,082/- was raised in the impugned order dated 27/09/2016 under section 143(1) of the Act. Aggrieved, the assessee filed appeal before the Learned CIT(A) on 06/02/2018 i.e. after a delay of almost 20 months. 2.1 Before the Ld. CIT(A) , the assessee submitted that as per the provisions of section 199 of the Act read with Rule 37BA of Income Tax Rules, 1962 (in short ‘the Rules’) the credit of the TDS has to be given in the assessment year in which corresponding income is offered for taxation/assessable. According to the assessee in view of the denial of TDs credit, there were two options before him. First option was filing of rectification application before the Assessing Officer and second option was to file appeal before the Learned CIT(A). The assessee submitted that he exercised first option of filing rectification application, however later on the assessee came to know that the first option exercise by it was not appropriate and therefore resorted to section option for filing the appeal before the Learned CIT(A). 2.2 The Ld. CIT(A) did not condone the delay in filing the appeal on the ground that there was no sufficient cause for the delay in filing the appeal. The Learned CIT(A) relied on the various decisions cited in his order.