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Facts
The assessee, Oriental Bank of Commerce, filed four appeals against the ex-parte orders of the CIT(A) for assessment years 2012-13 and 2014-15 to 2016-17. The appeals were filed with a significant delay of 482 days, for which the assessee sought condonation.
Held
The Tribunal condoned the delay of 482 days, finding sufficient cause due to the merger of the bank and communication issues. Subsequently, the Tribunal decided to remand the matter to the Assessing Officer for fresh adjudication on merits, allowing the assessee an opportunity to present their case.
Key Issues
Whether the delay in filing the appeal is justifiable on grounds of sufficient cause and whether the matter should be remanded for fresh adjudication on merits.
Sections Cited
201, 201(1), 201(1A)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI,
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA Nos. 263 to 266/JP/2025 fu/kZkj.k o"kZ@Assessment Year : 2012-13 & 2014-15 to 2016-17 cuke Oriental Bank of Commerce ITO (TDS)-3, Vs. Sujangarh Gadhichowk, Jaipur Sujangarhchuru, Churu LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: JPR001614E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Shrawan Kumar Gupta, Adv. jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 07/04/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 15/04/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
These four appeals are filed by the above named assessee because assessee aggrieved with the finding so recorded by the learned National Faceless Appeal Centre, Delhi [ for short NFAC/ CIT(A) ] for the assessment year 2012-13 & 2014-15 to 2016-17 all were disposed of on 31.07.2023. The said order of the ld. CIT(A), NFAC arise as against the separate order dated 25/03/2019 passed under section 201 of the Income Tax Act, 1961 [ for short Act ] by ITO, TDS-3, Jaipur [ for short AO ]. Since and are disposed of by a common order by taking the fact of the case in as lead case.
2. At the outset of hearing, the Bench observed that there is a delay of 482 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers:
Sub: Prayer for condo nation of Delay Honble Sir, 1. In this connection it is submitted that the applicant is a Banking financial institute, having branch office at Sujangarh Churu Rajasthan. In this case the TDS assessment A.Y. 2012-13 OR F Y 2011-12 was completed on 25.03.2019 u/s 201(1)/201(1A) raising the demand of Rs.13,35,851/-. Against which the assessee had filed an appeal before the ld. CIT(A)-3, Jaipur. Thereafter the ld. CIT(A)-NFAC has passed the Ex-party order of appeal on 31.07.2023 which was probably served on the email id of Bank but not served physically. Hence as per the date of order the appeal was to be filed on or before Month of 29.09.2023 but the same is being filed on 27.01.2025 i.e by delay of about 16 Month.
2. The reason of late filing was that the assessee is situated at Sujangarh in Churu District, Rajasthan the order was sent on the email id:-bm0192@obc.co.in which belongs to Bank branch. As the OBC bank has merged from Oriental Bank of Commerce with Punjab National Bank. Due to the merger of the bank, significant changes in the bank’s administrative framework, including the migration of systems, changes to email IDs, Password and restructuring of responsibilities etc. Hence notices and the order has not been come to the knowledge to the concerned person of the bank. Recently when the bank has received the penalty notices has come to know that the ld. CIT(A) has passed the Ex-party assessment order. Further it is also reasons that in the bank there were multiple email and the same has been escaped by the staff. As the bank for the purpose income tax matter and appeals has engaged to the counsel and was under impression that the counsel is looking after the matter. And other-side the counsel was under impression that when the assessee Bank will receive the notices or order he will be informed because the email id as well as the postal address was of the assessee’s bank. Thereafter the concerned person of the bank has contacted to the counsel and asked to check the income tax portal. Then the counsel has checked the same and see all the things and come to know the exparty order passed by the ld. CIT(A).
That after seeing the order on the portal and email, assessee download this appeal dismissed order. Then the counsel/advocates advised to file the appeal against the dismissed order being the strong case in favour and there is merit in the case.
3. That thereafter our counsel has started to prepare the appeal and the appeal has been prepared on .01.2025 and sent to us for singe.
Thus there was no negligence’s of either assessee nor the counsels being communication gape and misunderstanding. Thus due to the above the appeal could not be filed within time. In support of these contention an affidavit of the authorized person of the assessee is enclosed. Due to all this reason the appeal could not be filed within time. In support of these contention affidavit of assessee is enclosed.
That there is a sufficient cause of delay in filling the appeal before your honor as per section 5 of Limitation act. 6. The aforementioned contention is well supported by the Hon’ble Supreme Court in the case of Moolchandra Vs. UOI, dated 05/08/2024 whereas the Honorable court has held “ If the cause of delay would fall within the four corners of “sufficient cause”, irrespective of the length of delay same deserve to be condoned”. 7. It is submitted that the Hon'ble Supreme Court in the case of Collector, Land & Acquisition v. Mst. Katiji & Others (1987) 167 ITR 471 (SC) has advocated for a very liberal approach while considering a case for condonation of delay. The following observations of the Hon'ble Court are notable: "The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But, the message does not appear to have percolated down to all the other Courts in the hierarchy." to 266/JP/2025 Oriental Bank of Commerce The said judgment is a leading case on the subject and has a binding force on all the officers subordinate thereto.
8. The action or inaction by an assessee, on the advice of its counsel, whether correct or incorrect, if caused a delay, has been held to be reasonable and sufficient cause in these cases also. Kindly refer N. Balakrishnan v. M. Krishna Murthy(1998) 7 SCC 123 published in 30 BCAJ 922, Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi and Anothers 118 ITR 507 . That it is also settled that for the mistake of the Counsel, the party cannot be suffered. Reliance on Mahaveer Prasad Jain v/s CIT, 172 ITR 331(MP), Concord India Insurance Co. Ltd v/s Smt. Nirmala Devi, 118 ITR 507(SC), Kripa Shankar v/s CIT/CWT 181 ITR 183(All), N. Balakrishnan v/s M. Krishanmurthy 7 SSC123.
The Hon'ble Jaipur Bench of ITAT has also condoned the dealy in the case of Ganesh Himalaya Pvt.Ltd. v. ACIT 22 Tax World 415 (Jp) where the filing was delayed because the son of the Managing Director had become victim of some misdeeds committed by the Holigans, particularly when on the similar points in the earlier four years, the appeals were filed in time. In the instant case also, the appeal could not be filed in time because of the above reasons and time taking a various process which were bonafide and was a sufficient cause and there was no melafide intention.
10. Recent Decision of Apex Court : in a recent decision, the apex court have again reiterated that the expression “sufficient cause” should receive a liberal construction. The Hon’ble court have also held that advancing of substantial justice should be of prime importance. Kindly refer Vedbai vs. Shantaram Baburam Patil & Others 253 ITR 798 (SC). Prayer : In view of above facts and circumstance and with the sympathy and settled legal position, the delay so caused may kindly be condoned.
The ld. AR of the assessee submitted all the orders were passed on the same day and it may be possible considering the mail facility of the bank that went to SPAM folder and could came into the knowledge and even the same when the notice for hearing was merged and therefore, the assessee has sufficient cause.
4. Per contra, ld. DR did not dispute the fact and contended that the Court may decide the issue as deem fit in the interest of justice as delay is of 482 days.
5. Heard the parties and perused the records. The assessee being the branch of Nationalized Bank and the reasons advanced by the ld. AR of the assessee being sufficient to condone the delay and therefore, we hold that the prayer by the assessee for condonation of delay of 482 days has merit and we concur with the submission of the assessee. Thus the delay of 482 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause.
Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal in on the following grounds ; to 266/JP/2025 Oriental Bank of Commerce
1. The impugned order u/s 201(1)/201(1A) dated 25.03.2019 as well as the notice u/s 201(1)/201(1A) both are invalid, illegal and are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.
2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing exparty order without providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the ld. AO may kindly be quashed and delete.
3. Rs.13,35,851/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the demand of Rs.7,26,006/- u/s 201(1) on account of short or non deduction of TDS on interest payment and also interest of Rs.6,09,845/- u/s 201(1A) on account of interest thereon totalling to Rs.13,35,851/- raised by the ld. AO. Hence the demand so raised by the ld. AO and confirmed by the ld. CIT(A)is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing. the assessee has taken following grounds of appeal:
1. The impugned order u/s 201(1)/201(1A) dated 25.03.2019 as well as the notice u/s 201(1)/201(1A) both are invalid, illegal and are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.
2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing exparty order without providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the ld. AO may kindly be quashed and delete.
3. Rs.20,02,069/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the demand of Rs.12,51,293/- u/s 201(1) on account of short or non deduction of TDS on interest payment and also interest of Rs.7,50,776/- u/s 201(1A) on account of interest thereon totalling to Rs.20,02,069/- raised by the ld. AO. Hence the demand so raised by the ld. AO and confirmed by the ld. CIT(A)is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
to 266/JP/2025 Oriental Bank of Commerce 4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing.” the assessee has taken following grounds of appeal:
1. The impugned order u/s 201(1)/201(1A) dated 25.03.2019 as well as the notice u/s 201(1)/201(1A) both are invalid, illegal and are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.
2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing exparty order without providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the ld. AO may kindly be quashed and delete.
3. Rs. 23,35,689/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the demand of Rs.15,78,168/- u/s 201(1) on account of short or non deduction of TDS on interest payment and also interest of Rs.7,57,521/- u/s 201(1A) on account of interest thereon totalling to Rs. 23,35,689/- raised by the ld. AO. Hence the demand so raised by the ld. AO and confirmed by the ld. CIT(A)is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full. 4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing. the assessee has taken following grounds of appeal:
The impugned order u/s 201(1)/201(1A) dated 25.03.2019 as well as the notice u/s 201(1)/201(1A) both are invalid, illegal and are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.
The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing exparty order without providing adequate and reasonable opportunity of being heard in the gross breach of law. Hence the additions so made by the ld. AO may kindly be quashed and delete.
3. Rs.14,15,062/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the demand of Rs.10,40,487/- u/s 201(1) on account of short or non deduction of TDS on interest payment and also interest of Rs.3,74,575/- u/s 201(1A) on account of interest thereon totalling to Rs.14,15,062/- raised by the ld. AO. Hence the demand so raised by the ld. AO and confirmed by the ld. CIT(A)is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
4. The appellant prays your honors indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing.
Succinctly, the fact as culled out from the records is that the assessee being a branch of Nationalized bank engaged in banking services. The ld. AO [ITO, TDS] in this case issued a letter dated 21.10.2016 to a branch calling for information relating to the interest paid/credited on fixed deposit on customers. In response to that letter so issued the bank branch submitted required details/information which were placed on record.
On verification of the information so furnished, ld. AO find that there is a short deduction of TDS for an amount of Rs. 7,26,006/- in this case on the various depositors wherein short fall were observed thus, ld. AO along with said short deduction also computed interest u/s 201(1A) of the Act totaling to Rs. 13,35,851/-.
8. Aggrieved from the order of that order of the ld. AO assessee preferred an appeal before the ld. CIT(A) which was disposed off by ld. assessee. Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:
“7.2 It is a settled proposition of law that an appellant bank has to plead the case and produce/adduce sufficient evidence to substantiate its grounds of appeal and in the event of non-compliance from the end of the appellant bank in availing of the opportunities provided during the course of appeal proceedings, the appellate authority is under no obligation to continue the case to remain undecided endlessly. The fact that the appellant bank did receive the assessment order and filed the present appeal, but chose not to respond to any notices issued by the appellate authority clearly establish the assessee's, total disregard to the due process of law. Hence, keeping in view the above mentioned facts and circumstances, I am satisfied that the appellant bank was provided sufficient opportunities to plead its case and contest the matter, but the appellant bank chose to let the case proceed ex-parte. The appellant bank has failed to make out It any credible or cogent ground for not to decide the appeal ex-parte despite getting adequate and sufficient opportunities of being heard.
7.3 In view of the discussion made above, I do not find any reasons to interfere with the findings given by the AO in his order.
In the result, appeal of the appellant is 'Dismissed'.
9. As the appeal filed before the first appellate order was dismissed the present appeal has been filed by the assessee before this tribunal on the grounds as reiterated above. The ld. AR of the assessee in support of the grounds raised submitted that the appeal of the assessee has been disposed of by the Ld. CIT(A) only on the ground that the assessee could not file sufficient evidence to substantiate it grounds as to non-compliance of TDS provisions of the Act. The ld. AR of the assessee further submitted as to availing of the Form no. 15G/H or 27BA so as to prove that the payee has paid the tax. As the branch may not have PAN of the assessee or the assessee might have submitted that form 15G/H in the alleged default of the short deduction or non-deduction cases as listed in the order under challenged. Based on that set of facts ld. AR of the assessee prayed to grant an opportunity to the assessee to present those facts on merits of the disputes as the assessee has sufficient reason to establish the non- deduction of tax by filing 27BA also that the tax to that interest paid by the branch has already subjected to tax by the payee. Thus, he prayed to set aside the matter to the file of ITO, TDS for effective adjudication of the matter.
Per contra, ld. DR relied upon the finding recorded in the order of the lower authority.
We have heard the rival contentions and perused the material placed on record. The bench noted that all the grounds of appeal raised by the assessee relate to the default of the assessee for non-deduction or short deduction of tax and the interest payable on that default by the assessee.
Apropos to that ground ld. AR of the assessee submitted that considering by the Ld. CIT(A) ex-prate only on the ground that the assessee could not file sufficient evidence to substantiate it grounds as to non-compliance of TDS provisions of the Act. The ld. AR of the assessee further submitted that assessee being the branch of the bank, has to file the relevant evidence as to availing of Form no. 15G/H or 27BA so prove that the payee has paid the tax. From the order it is also revealed that in some case PAN number was not mentioned but in fact branch may have the same and the assessee might have submitted those details along with the form 15G/H in the alleged default of the short deduction or non-deduction cases as listed in the order under challenged.
Based on that set of facts ld. AR of the assessee prayed to grant an opportunity to the assessee to present those facts on merits of the disputes as the assessee has sufficient reason to establish the non-deduction of tax by filing 27BA also that the tax to that interest paid by the branch has already subjected to tax by the payee. Considering the specific prayer of the assessee the bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing an opportunity of being heard to the assessee. Therefore, based on those facts we deem it fit to remand the matter to the file of the ld. AO after due verification of the facts and charge the correct income in hands of the assessee after affording due opportunity to the assessee and dealing with the evidence placed on record. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. AO.
In the result, the appeal in filed by the assessee is allowed for statistical purposes.
The fact of the case in to 266/JP/2025 are similar to the and we have heard both the parties and persuaded the materials available on record. Therefore, it is not imperative to repeat the facts, various grounds raised by the assessee and the arguments of both the parties in to 266/JP/2025. Hence, the bench feels that the decision taken by us in for the Assessment Year 2012-13 shall apply mutatis mutandis in the case of Oriental Bank of Commerce in to 266/JP/2025 for the Assessment Years 2014-15 to 2016-17.
In the result, the appeal filed by the assessee in to 266/JP/2025 are allowed for statistical purposes.
Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 15/04/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Oriental Bank of Commerce, Churu izR;FkhZ@ The Respondent- ITO (TDS)-3, Jaipur 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA Nos. 263 to 266/JP/2025) 6. vkns'kkuqlkj@ By order,
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