NESTOR INFOTECH SOLUTIONS PRIVATE LIMITED,BANGALORE vs. ASSISTANT COMMISSIONER OF INCOME TAX, CPC (TDS), GHAZIABAD

We heard the parties and perused the record. The ld AR submitted that the TDS returns furnished by the assessee were processed u/s 200A prior to 1.6.2015, wherein fee u/s 234E for late filing of TDS returns were levied and also consequent interest u/s 220(2) of the Act was charged. The assessee filed subsequently multiple correction statements to the TDS returns filed by it originally. Hence rectification orders came to be passed u/s 154 of the Act consequent to the correction statements filed by the assessee. In the rectification statements also, the demand u/s 234E and 220(2) of the Act were reflected. Hence the assessee filed the appeals before ld CIT(A) challenging the levy of fee u/s 234E of the Act and consequent levy of interest us/ 220(2) of the Act. However the ld CIT(A) has taken the view that the demand u/s 234E and 220(2) has been raised in the original order and hence the assessee should have challenged the said orders and not the orders passed u/s 154 of the Act. Accordingly the Ld CIT(A) has dismissed all the appeals filed by the assessee.

The ld AR submitted that the demand raised u/s 234E and 220(2) of the Act also arises out of order passed us/ 154 of the Act and since the assessee was pursuing the matter relating to TDS returns by filing rectification petitions, the ld CIT(A) should have adjudicated the appeal on merits also. In this regard the ld AR placed his reliance on the order dated 3/7/2019 passed by coordinate bench in the case of M/s Purvankara Ltd. (ITA No.1995/Bang/2018). The ld AR submitted that, on almost identical set of facts, the Tribunal has restored the appeal to the file of the ld CIT(A) to treat the appeal filed by the assessee as the appeals filed against the original order, if a petition is filed by the assessee before him along with the request for condonation of delay. The ld AR accordingly pleaded that the ld CIT(A) should be directed to admit the appeals of the assessee.

We heard the ld DR and perused the record. We noticed that the coordinate bench has dealt with almost an identical issue in the case of Purvankara Ltd. (Supra) and the matter has been restored to the file of ld CIT(A) with the following observations:-

In the interest of justice and in view of the facts noted above, we feel it proper to restore back the entire issue in the present appeal to the file of Id. ClT(A) for a fresh decision. If the assessee makes a request before Id. CIT(A) to treat this appeal of the assessee as an appeal against the original order passed by the AO u/s. 201(1A) of the IT Act dated 23.12.2009 along with a request for condonation of delay because the present appeal was filed by the assessee before Id. CIT(A) on 09.04.2010 as noted by Id. CIT(A) on page no. 1 of his order and therefore, if this appeal is considered as an appeal against the original order passed by the AO u/s. 201(1A) dated 23.12.2009, then there is a delay in filing appeal before Id. 011(A) and hence, if the assessee makes request for condonation of such delay, the Id. CIT(A) should first decide about the request for condonation of the delay and if he condones the delay, then he should decide the appeal of the assessee by considering this appeal as an appeal against the original order passed by the AO u/s. 201(1A) of the IT Act dated 23.12.2009. In view of this decision, no further adjudication is called for on merit and we do not make any comment on the merit.”

Accordingly following the above said order passed by coordinate bench, we set aside all the orders passed by the ld CIT(A) and restore all the appeals to the file of ld CIT(A) with identical direction.

In the result, all the appeals filed by the assessee are treated as allowed for statistical purposes.