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Income Tax Appellate Tribunal, ‘ B’ BENCH : CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI INTURI RAMA RAO]
आदेश / O R D E R
PER BENCH:
These twenty three appeals have been filed by the assessee directed against different orders of the learned Commissioner of Income Tax (Appeals)-17, Chennai (hereinafter called as ‘CIT(A)’) dated 12.06.2019 for the assessment years 2013-14 (Q2), 2013-14 (Q3), 2013-14 (Q4), 2013-14 (Q2), 2013-14 (Q3), 2013-14 (Q4), 2014-15 (Q1), 2014-15 (Q2), 2014-15 (Q3), 2014-15 (Q4), 2014- 15 (Q1), 2014-15 (Q2), 2014-15 (Q4), 2015-16 (Q1), 2015-16 (Q2), 2015-16 (Q3), 2015-16 (Q4), 2015-16 (Q1), 2015-16 (Q2), 2015-16 (Q3), 2015-16 (Q4), 2016-17 (Q1) and 2016-17 (Q1) respectively.
2. Since, the identical facts and issues are involved in these appeals, we proceed to dispose the same vide this common order.
3. For the sake of convenience and clarity the facts relevant in for assessment year 2013-14 (Q2) are stated herein.
The Assessee raised the following grounds of appeal: 4.
‘’1. For that the order of the Learned Commissioner of Income Tax (Appeals), Chennai u/s. 250 of the Income Tax Act, 1961 is opposed to law, facts and circumstances of the case and the principles of natural justice. 2. For that the Learned Commissioner of Income Tax (Appeals) erred in dismissing the appeal stating that in the absence of specific -2058/CHNY/2019 :- 3 -: reasons for delay in filing the appeal the delay is not condoned and the appeal is dismissed as barred by limitation.
3. For that the Learned Commissioner of Income Tax (Appeals) by dismissing the appeal on limitation has erred in indirectly confirming the addition of Rs. 15,750/- u/s 234E of the Income Tax Act. (Tax effect — Rs. 15,750/-) 4. For that the Learned Commissioner of Income Tax (Appeals) ought to have appreciated the fact that the provisions of Section 200A r.w.s 234E are applicable only from 01.06.2015.
5. For that the Learned Commissioner of Income Tax (Appeals) erred in not considering the decision rendered by the Jurisdictional Tribunal in the case of Dollars & Pounds v. The Assistant Commissioner of Income Tax, CPC TDS (ITA Nos. 2015 to 2030/CHNY/2018) 6. For that the Learned Commissioner of Income Tax (Appeals) erred in not considering the decision rendered by the Jurisdictional Tribunal in the case of G lndhirani vs DCIT (ITA Nos 1019 to IO21/MDS/ 2015) [2015] 60taxmann.com 312 PVT LTD. For these grounds and such other grounds that may be adduced before or during the hearing of the appeal, it is prayed that the Hon’ble Tribunal may be pleased to delete the fee levied u/s 234E of the Act and/or pass such other orders as this Hon’ble Tribunal may deem fit’’.
.The brief facts of the case are as under: 5.
The appellant namely M/s. Vasanta Bhavan Hotel India Pvt. Ltd, is a company incorporated under the provisions of the Companies Act, 1956. During the financial year 2012-13 (Q2) the appellant had deducted tax at source and paid to the Central Government. The applicable quarterly statement was filed belatedly on 04.06.2013 and it was processed on 26.09.2016 and levied late fee of �15,750/- u/s. 234E of the Income Tax Act, 1961 (in short ‘the Act’). -2058/CHNY/2019 :- 4 -:
6. Being aggrieved, an appeal was filed before the ld. CIT(A).
Admittedly, there is delay of 885 days in filing the appeal before CIT(A). A petition for condonation of delay before ld. CIT(A) was filed stating as under:-
‘’1. The intimation u/s 200A of the Income Tax Act, 1961 far Form 24Q of the Second Quarter of FY 2012-13 was served to the deponent on 26.09.2016.
2. The deponent is filing an appeal against the above intimation u/s 200A of the Income tax Act, 1961 before the Commissioner of Income Tax Appeals-17, Chennai on 30.03.20 19 with a delay of 885 days.
The deponent submits that the intimation u/s 200A of the Income tax Act, 1961 levying Late filing fee u/s 234E and Interest on Late Payment of TDS was received by the petitioner.
The deponent had a belief that the accountant had paid the TDS and filed TDS return on time but subsequently on the receipt of the intimation from the CPC, Ghaziabad it came to the notice of the deponent that the TDS has been remitted, however the TDS return was not filed by the deponents accountant.
The deponent on the receipt of the intimation filed the TDS return and was of an opinion that filing of the Return would put rest to the issue as the Late filing fee u/s 234E is applicable only from 01-06- 2015 and hence did not prefer an appeal. However, final intimation was received from the Assistant Commissioner of Income-Tax, Centralized Processing Cell TDS for payment of tax arrears. Hence deponent prefers this appeal.
6. It is most humbly and respectfully submitted that the delay in filing appeal was not willful and due to circumstances beyond the control of the deponent.
7. The deponent most humbly and respectfully prays before your Authority to kindly condone the delay and admit the appeal’’.
However, the ld. CIT(A) had not condoned the delay and dismissed the appeal in limine. -2058/CHNY/2019 :- 5 -:
Being aggrieved, the appellant is in appeal before us in the present appeal.
We heard the rival submissions and perused the material on record. Admittedly, late fees u/s.234E of the Act was levied even in respect of period before the insertion of provisions of Section 234E of the Act. It is settled position of law that no provision of the Act has retrospective effect unless or otherwise expressly made retrospectively applicable. Thus, it appears that assessee has meritorious case. The ld. CIT (A) should have considered the petition for condonation of delay keeping in view the judgment of Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji and Others (supra) wherein the following principles were laid down relating to condonation of delay.
‘’1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. " Every day's delay must be explained " does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to -2058/CHNY/2019 :- 6 -:
have vested right in injustice being done because of a non- deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so’’.
Further, the Courts have always held that the delay is a matter of which could be condoned in the interest of justice. The Jurisdictional High Court in the case of Sreenivas Charitable Trust vs. DCIT (2006)
280 ITR 357 had depreciated meticulous approach in construing the meaning of sufficient cause for the condonation of delay. In the light of the above facts and law, we are of the considered opinion that the ld. CIT(A) should have condoned the delay. Therefore we direct the ld. CIT(A) to admit the appeal and decide the issue in appeal on merits in accordance with law and we restore the matter back to the file of the ld. CIT(A) for adjudication.
In the result, the appeal filed by the assessee in ITA 9.
No.2036/CHNY/2019 for assessment year 2013-14 (Q2) is partly allowed for statistical purpose. -2058/CHNY/2019 :- 7 -:
ITA Nos.2037 to 2058/Chny/2019:-
8. Since, the facts in the present appeals are identical to the facts in for the reasons mentioned therein, we partly allow the appeals for statistical purpose filed by the assessee on the above lines indicated in appeal ITA No.2036/Chny/2019 supra.
Hence, the above captioned appeals filed by the assessee are partly allowed for statistical purpose.
In the result, the appeals filed by the assessee in to 2058/CHNY/2019 are partly allowed for statistical purpose.
Order pronounced on 19th day of November, 2019, at Chennai.