MEHER ADVANCED MATERIALS PRIVATE LIMITED ,BANGALORE vs. COMMISSIONER OF INCOME TAX (A) , MYSORE

In all these captioned appeals, the assessee has raised multiple grounds but has essentially challenged levy of late fee under sec.234E of the Act on delay in filing return/ statements with details of persons form the TDS was deducted etc. under S. 200(3) read with Rule 31A of Rules. It is thus contended that intimation passed under sec.200A of the Act wherein late fee under S. 234E has been levied is bad in law.

The assessees herein are closely held domestic companies. For the varied assessment years in appeal, the captioned assessees were assessed under sec.200A of the Act on TDS defaults. As per respective intimations, late filing fee of varied amounts were also levied S. 234E of the Act for alleged default under Sec.200(3) of the Act. The captioned assessees herein filed appeal before to 3199(B)/2018 3 the respective CIT(A) against the aforesaid act of the respective AO. The CIT(A) concerned however dismissed the appeals at threshold in limine as defective appeals in the absence of notice of demand / order under S. 200A etc.

The assessee has impugned the respective orders of the CIT(A) before the Tribunal.

At the time of hearing, it was prayed on behalf of the assessee for condonation of delay of about 30-35 days in filing appeal before the Tribunal. On perusal of the affidavit filed in this regard, we find that the reasons cited for delay is that the key person responsible was on Haz Pilgrimage about that time. Considering the smallness in delay, the delay is condoned.

In support of its appeal on merits, the ld.AR for the assessee submitted at the outset, that order passed under Sec.200A showing demand which is the genesis of the controversy was not available at the time of appeal before the CIT(A). The CIT(A) has passed the order ex-parte in the absence of such original intimation/ notice of demand.

In this context, it was contended that in the absence of original notice of demand/ copy of intimation, the order of the CIT(A) was not in a position to deal with the issues raised by the assessee in perspective. The appeal of the assessee was considered defective by the CIT(A) and thus not admitted and dismissed in limine. It was pointed that the relevant notice of demand/ intimation is now in the possession of the assessee and placed on record. The notice of demand was not served on the assessee and therefore, same could not be submitted to the CIT(A). In this background, the ld. AR for the assessee submitted that a fair opportunity be given to the respective assessee to defend to 3199(B)/2018 4 the levy / demand in accordance with law. It was thus urged that all the captioned appeals may be sent back to the file of the CIT(A) for decision on merits for which relevant original intimation etc., has been placed on record.

Before we proceed to in the matter it will be appropriate to re-produce the common conclusion of the CIT(A) in respective appeals hereunder; As the appellant failed to furnish either the original notice of demand pertaining to the disputed demand or to furnish a certified true copy thereof together with an affidavit to the effect that the original notice of demand was either not served or lost, etc., the deficiency was intimated to the appellant vide letter No. ITBA/APL/S/25/2018-19/1010527585(1), dt.18/07/2018, requiring the appellant to remove the defect by submitting the requisite details/rectifying the defect within 10 days of receipt of that letter, failing which, the appellant was informed that the appeal may be treated as invalid. The aforesaid letter No. ITBA/APL/S/25/2018-19/1010527585(1), dt.18/07/2018 was issued in due compliance with the clarification issued by the jurisdictional Chief Commissioner of Income-tax, Bengaluru-1, Bengaluru in respect of appeal papers that are not accompanied by the respective demand notices in original, vide Ref. F. No.4/CCII/BNG-1/2017-18/302 dated 20.07.2017. The aforesaid notice intimating the deficiency sent to the appellant by Speedpost at the address furnished by the appellant was duly served on the appellant as per the postal acknowledgement available on record but there was no response from the appellant till date. No communication was received from the appellant stating that the appellant was prevented by any reasonable cause from responding to the aforesaid letter No. ITBA/APL/S/25/2018-19/1010527585(1), dt.18/07/2018. Therefore, for the aforesaid reasons, the appeal is considered defective and is not admitted. For statistical purposes, the appeal is dismissed.

As pointed out on behalf of the assessee, the appeal of the assessee before the CIT(A) has been dismissed in limine as defective and unadmissible in view of the absence of intimation under sec.200A of the Act/ notice of demand etc., It is the case on behalf of the captioned assessees’that intimation was not available with the assessee and was lying in the TRACES portal. The assessee had made an application before the E-TDS Ward also seeking copy of intimation to 3199(B)/2018 5 under sec.200A of the Act. The assessee has now placed the intimation under sec.200A of the Act before the Tribunal. The averments made on behalf of the assessee appears to be bonafide. The assessee has filed appeal before the CIT(A). The assessee can not be said to be benefited in any manner by not filing the intimation and not removing the defects while intending to pursue the appeal.

Having regard to circumstances narrated, We are of the considered view that the captioned assessees must be given a fair opportunity to deal with its grievance before the CIT(A) concerned. All the captioned appeals are accordingly, remanded back to the file of the CIT(A) for fresh adjudication of all issues raised in the appeal after taking note of the submissions on behalf of the assessee in this regard.

In the result, the appeals of the assessee are allowed for statistical purposes.