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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 405 & 409/JP/2018
PER VIJAY PAL RAO, JM :
These two appeals by the assessee are directed against two separate orders of ld. CIT (A), Ajmer dated 5th October, 2017 and 10th October, 2017 arising from
the orders for levy of fees under section 234E read with section 200A(1) of the IT
Act for the assessment year 2016-17 for quarter 1 and quarter 2.
There is a delay of 75 days and 78 days respectively in filing these appeals.
The assessee has filed the application for condonation of delay which is supported
by affidavit of the Assistant Engineer, Ajmer Vidhyut Vitaran Nigam Ltd.,
Srimadhopur, Sikar.
We have heard the ld. A/R as well as the ld. D/R on condonation of delay of
75 days/78 days respectively in filing these appeals. It is explained that the
2 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
concerned employee who was handling the matter misplaced the impugned orders
passed by the ld. CIT (A) and went on leave. After he returned from leave tried to
search the orders but failed and thereafter finally the files along with the impugned
orders were found. Hence it is explained that the delay in filing the appeals is neither
intentional nor willful but due to the unavoidable circumstances that the concern
files were got misplaced and only after the files were traced out the present appeals
were filed. The ld. A/R of the assessee has relied upon the decision of Hon’ble
Supreme Court in the case of State of Bihar vs. Kamshewar Prasad Singh, AIR 2000
SC 2006 as well as in the case of Poonja Arcade vs. Asstt. CIT, 326 ITR 123 of
Hon’ble Karnataka High Court. He has also relied upon the decision of Hon’ble
Supreme Court in the case of Vedabai Vaijayanatabai Baburao Patil vs. Shantaram
Baburao Patil, 253 ITR 798 (SC). Thus the ld. A/R has submitted that the delay in
filing the appeals may be condoned and the appeals may be disposed off on merits.
3.1. On the other hand, the ld. D/R has submitted that the assessee is habitual in
filing the appeal belatedly. The ld. CIT (A) vide impugned order has dismissed the
appeals of the assessee as time barred, therefore, the assessee’s conduct does not
deserve any liberal approach to be adopted.
We have considered the rival submissions as well as the relevant material on
record. The assessee has explained the delay that the concerned files along with
the impugned orders were got misplaced by the employee of the assessee and only
when the files were finally traced out, the present appeals were filed without any
further delay. This explanation has been duly supported by the affidavit of the
Assistant Engineer of the assessee Nigam. Having considered the facts and
3 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
circumstances of the case, when there is nothing to show that the assessee would
have achieved any ulterior purpose by filing the present appeals belatedly,
accordingly in the interest of justice we condone the delay of 75 days/78 days in
filing these appeals.
The assessee has filed the common grounds in these appeals as under :-
ITA No. 405/JP/2018 :
“ In the facts & circumstances of the case the ld. CIT Appeals, Ajmer has erred in not admitting the appeal for LATE FEES imposed u/s 234E Under clause (c) of sub section 1 of 200A.
The assessee has filed an appeal with ld. CIT (appeals) Ajmer against the intimation dated 20.8.2015 issued under section 200A of IT Act 1961 levying late filing Fee of Rs. 6600/- u/s 234 by ACIT, CPC (TDS) Ghaziabad (TDS return relates to 24Q 1st Qtr.)
As per provision of Sec. 234 E late fee cannot be recovered for TDS statements which were due for F.Y. 2011-12 as well on TDS statements late fee cannot be recovered for F.Y. 12-13 if not collected at the time of delivering TDS statements to the deptt. Provision of Sec. 234 E has been made applicant with effect from 1st July 2012. It states that “Amount of late fee shall be paid before delivering a TDS statement”. It means that any late fee should have fee deposited just at the time of delivering TDS statements & not later than this. The authorized TIN-NSDL centre which accepted the TDS statements also accepted there without late fee, as well as the software utility of the TDS deptt. It self accepted these without late fee.
The tax was deducted & deposited in time, the only default is delay in filing of the return, the alleged delay in filing the TDS statement has not resulted in any loss of revenue to the department and, therefore, the default, if any, was purely venial breach. The assessee was being GOVT, COMPANY working in public interest and there was no mala fide intention of not filing the TDS return at source within time. That when the TAX had been deposited in time, there could not have any object or intention as the part of assessee not to submit the return in time.
4 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
It is also relevant to note that the law has not made any person responsible, to deposit late fee, in case of default in depositing late fee along with TDS statement, which can be inferred from the provisions of Sec. 204 of the Act Section 204 particularly states that “for the purposes of Sec. 190 to Sec. 203 and for Sec. 285 of the Act the following persons would be responsible”, so it is clear that for the purpose of Sec. 234E none of the person has been made responsible, therefore if any late fee is due and not deposited along with the TDS statement none can be held responsible to deposit it.
In our case the deductor is Government so company as per law Government cannot be held responsible person to deposit it.
In the facts & circumstances of the case the learned A.O. erred in imposing late fee without appreciating the facts & circumstances of the case and hence the same should be deleted.
That the order is bad in law.
The appellant craves leave to add, amend, alter, vary and or withdraw any or all the above grounds of appeal with the prior permission of the chair.
We have heard the ld. A/R as well as the ld. D/R and considered the relevant
material on record. The ld. A/R has submitted that the assessee is a Government
Company working in public interest and there was no malafide intention for not filing
the appeal in time before the ld. CIT (A). The ld. A/R has pointed out that assessee
did not receive any order passed by the AO under section 234E and only when the
demand notice was received by the assessee the appeals were filed before the ld.
CIT (A) on 26.08.2016. The ld. A/R has further pointed out that the ld. CIT (A) has
given the reference of sending the notice through e-mail. However, the assessee did
not receive any such demand notice prior to the service of the notice. Thus the ld.
A/R has submitted that the ld. CIT (A) has dismissed the appeals of the assessee in
5 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
limini without giving an opportunity to the assessee to explain the delay, if any, in
filing the appeals before the ld. CIT (A).
6.1. On the other hand, the ld. D/R has submitted that the ld. CIT (A) has given
the finding that the demand notice was duly sent to the assessee through e-mail on
20.08.2015 whereas the appeals were filed by the assessee on 26.08.2016. Thus
there was a delay of around 11 months in filing the appeal before ld. CIT (A) and
there was no explanation on behalf of the assessee. The ld. D/R has relied upon the
orders of the authorities below.
Having considered the rival submissions as well as the relevant material on
record, we note that the ld. CIT (A) has dismissed the appeals of the assessee in
limini by recording the finding in para 4 as under :-
“ 4. Thus, from the report of the AO, it is clear that the notice of demand was sent to the appellant on 20.08.2015 on the email salgids@redifmail.com given by the appellant. As per Section 249(2), the appeal has to be presented within 30 days of date of service of notice of demand. The appellant has not filed the appeal within the period specified u/s 249(2). There is an inordinate delay in filing the appeal. I am of the considered view that the appellant did not have any sufficient cause for not presenting the appeal within the period specified u/s 249(2). Hence, the appeal is dismissed as “not admitted”.”
Thus the ld. CIT (A) has taken into consideration the alleged service of notice of
demand through e-mail. However, other than the alleged e-mail, no other record
was referred for service of notice to the assessee. Even otherwise, the assessee
6 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
was not heard on the point of explanation of delay, if any, in filing the appeals
before the ld. CIT (A). Therefore, we are of the considered opinion that the ld. CIT
(A) has dismissed the appeals being barred by limitation even without giving a
specific opportunity to the assessee to explain the delay, if any. The assessee has
not claimed any delay in filing the appeals before the ld. CIT (A) whereas the ld. CIT
(A) has considered the appeals filed by the assessee as barred by limitation.
Accordingly, in such a situation, a defective memo was required to be issued to the
assessee or the assessee ought to have been given an effective opportunity of
hearing on the point of delay. Accordingly, in the facts and circumstances of the
case and in the interest of justice, we set aside these two appeals to the record of
the ld. CIT (A) for giving one more opportunity to the assessee to present its case
and also to explain the cause of delay, if any, in filing the appeals. After considering
the explanation of the assessee, the ld. CIT (A) shall decide the issue of condonation
of delay and thereafter the appeals on merit, if need arises.
In the result, appeals of the assessee are allowed for statistical purposes.
Order is pronounced in the open court on 22/05/2018.
Sd/- Sd/- (foØe flag ;kno) (fot; iky jkWo ½ (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Jaipur Dated:- 22/05/2018. Das/
7 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.
आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
The Appellant- AEN (O&M), Ajmer Vidhyut Vitaran Nigam Ltd., Srimadhopur. 2. The Respondent – The ACIT, CPC, (TDS) Ghaziabad, Jaipur. 3. The CIT(A). 4. The CIT, 5. The DR, ITAT, Jaipur 6. Guard File (ITA No. 405 & 409/JP/2018) vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत
8 ITA Nos. 405 & 409/JP/2018 AEN Ajmer Vidhyut Vitaran Nigam Ltd., Ajmer.