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Income Tax Appellate Tribunal, “A” BENCH,
Before: SHRI R.S.SYAL & SHRI PARTHA SARATHI CHAUDHURY
आदेश / ORDER
PER BENCH:
This batch of 7 appeals arise from different orders passed by the National Faceless Appeal Centre (NFAC), Delhi on 02-08-2021 dismissing all the appeals at the threshold on account of delay in filing the first appeals ranging from minimum of 1517 days to maximum of 2558 days. The issue raised in all these appeals is charging of interest u/s.234E for the quarters arising in assessment years 2013-14, 2014-15 and 2015-16.
Briefly stated, the facts of the case are that the assessee is a partnership firm engaged in the business of supply of Electrical items, Control switch gears and Pneumatic tools. The TDS returns for the respective quarters were filed belatedly. Based on that, the Assessing Officer (AO) levied late fees u/s.234E of the Income-tax Act, 1961 (hereinafter also called `the Act’). The assessee approached the ld. CIT(A) belatedly against the waiver of such fee. Since the appeals were time barred, the ld. CIT(A) did not condone the delay and dismissed them in limine.
We have heard the rival submissions and gone through the relevant material on record. It is seen that fee u/s.234E has been imposed by the AO for belated filing of the relevant statements. The assessment years involved in these 7 appeals are 2013-14, 2014-15 and 2015-16, which shows that the fee u/s.234E has been imposed for the delay in furnishing the statements for quarters prior to 01-06-2015.
Section 200A deals with processing of statements of tax deducted at source. Clause (c) of section 200A(1) was inserted by the Finance Act 2015 w.e.f. 01-06-2015 providing for the levy of fee u/s.234E of the Act. In that view of the matter, such fee u/s.234E can be levied only for the default committed after 01-06-2015 and not prior to that.
The Hon’ble Kerala High Court in Olari Little Flower Kuries Pvt. Ltd. Vs. Union of India and others (2022) 440 ITR 26 (Kerala) has affirmed the non-imposition of fee for the period prior to 01-06-2015. Similar view has been taken in Jiji Varghese VS. ITO(TDS) & Ors. (2022) 443 ITR 267 (Ker) holding that no interest u/s 234E can be imposed for the periods of the respective A.Ys. prior to June 1, 2015.
Thus, it is seen that on merits the issue raised in these appeal is covered in favour of the assessee. However, the fact of the matter is that the ld. CIT(A) did not condone the delay and dismissed the appeals at threshold. The ld. AR submitted the reasons for the delay in filing the appeals belatedly before the ld. CIT(A), being, resignation of Accountant of the assessee firm in and around 2018; followed by prolonged illness and death of family members; and Covid-19 pandemic situation prevailing thereafter.
The moot point is as to whether such a long delay deserves condonation. At this stage, it is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Similar to the cases under consideration, in that case too, delay of 2984 days crept in due to improper legal advice.
Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979)
118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay.
In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 BomHC, there was a delay of 1662 days in filing the appeal. Such a delay was not condoned by the Hon’ble High Court.
In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru vs. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. For this reason we set aside the order of the High Court; condone the delay for filing the appeal and direct to decide the appeal on merits.’
Turning to the facts of the instant appeals, we find that the legal issue raised by the assessee is squarely covered in assessee’s favour for the aforesaid judgments of the Hon’ble Jurisdictional High Court, Kerala High Court and several orders passed by the Pune Benches of the Tribunal on this score. As against the situation in Anil Kumar Nehru (SC) in which the question of law was yet to be decided, we are confronted with a situation in which the question of law involved in the present set of appeals has already been decided in favour of the assessee. Under these circumstances, we condone the delay crept before the ld. CIT(A) and allow the appeals on merits.
In the result, all the appeals are allowed.
Order pronounced in the Open Court on 19th day of September, 2022.