SHREE DURGA TRADING CO.,,KOLKATA vs. ITO TDS WARD 3(3),, KOLKATA

The appeal is time barred by 37 days in filing the appeal by the assessee before the Tribunal. However, the Partner of the assessee-Company filed an affidavit dated 5th June, 2025 before the ITAT in support of condonation of delay of 37 days mentioning that the order passed by the ld. CIT(Appeals) could not serve physically upon the appellant and the said order was only available on the portal/sent by e-mail and the said order could not be noticed by the Accountant who was responsible for accessing the e-mails related to Income Tax Department and informing the concerned person for the purpose of taking action thereupon. The delay of 37 days occurred was completely unintended and beyond the control of the appellant and there was no malafide negligence on the part of the appellant in the instant case. When he came to know about the order passed by the ld. CIT(Appeals), he approached the ld. A.R. to prefer an appeal, due to that there was a delay of 37 days in filing the appeals before the Tribunal. Therefore, he pleaded to condone the delay in the appeal.

Considering the facts and circumstances of the case, we are of the view that the assessee was prevented in filing the appeal within the stipulated time. Therefore, we are inclined to condone the delay of 37 days. Hence the delay is condoned for the appeal.

The facts in brief are that this appeal is against the intimation under section 200A/206CB of the Income Tax Act issued by the DCIT, Centralized Processing Cell, TDS determining the demand of Rs.90,240/- on account of alleged short collection of TCS. The appellant filed the TCS return for the quarter ended 31.12.2023 on Shree Durga Trading Co. 3

01.2024 which was processed on 20.01.2024 and demand of Rs.90,240/- was determined on account of short collection of TCS, The appellant correctly collected TCS at the rate of 5% instead of applicable rate of 2.5%. It is noticed that out of four collectees, three collectees had given 27C to the assessee hence no TCS was applicable on the said three collectees and appellant had collected TCS @ 2.5% from one collectee. Inspite of asking to provide the sufficient documentary evidence, there was no compliance from the appellant’s end and assessee furnished receipt of form 27C from the collectees and collection of TCS where collectee had not given form 27C and filing of TCS return within the due date. On being aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals).

The ld. CIT(Appeals) dismissed the appeal of the assessee saying that the assessee did not file any documentary evidence in support of its claim. The appeal cannot be decided merely on the basis of grounds of appeals and statement of facts as no corroborative evidence of any kind has been submitted the appellant-assessee.

On being aggrieved, the assessee preferred appeal before the ITAT. At the outset, it was the submission of the ld. Counsel for the assessee that the assessee is willing to prosecute the appeal before the ld. CIT(Appeals) on merit and he pleaded to set aside the order passed by the ld. CIT(Appeals) and restore the matter to the file of ld. CIT(Appeals) to decide it afresh. Shree Durga Trading Co. 4

On the other hand, ld. Departmental Representative submitted that as the assessee did not file any documentary evidence in support of its claim inspite of providing sufficient opportunities, the ld. CIT(Appeals) has left no other option but to dismiss the appeal of the assessee. He pleaded to confirm the order passed by the ld. CIT(Appeals).

We have heard both the sides and perused the material available on record. By considering the totality of the facts and circumstances of the case, we are of the view that it is a fit case to set aside the order passed by the ld. CIT(Appeals) and remit the matter back to the file of ld. CIT(Appeals) with a direction to dispose of the appeal without any inference on the observations of earlier order passed by him and to decide it afresh on merit. At the same breath, we also hereby caution the assessee to promptly co- operate with the proceedings before the Ld. CIT(Appeals) failing which the Ld. CIT(Appeals) shall be at liberty to pass appropriate order in accordance with law and merits of the case, based on the materials available on the record. Thus, the grounds raised by the assessee are allowed for statistical purposes.

In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 30/10/2025. (Rajesh Kumar) (Duvvuru RL Reddy) Accountant Member Vice-President