DR. RAJINDER PARSHAD GUPTA,GURGAON vs. DCIT (TDS), GURGAON

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: ‘F’, NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA No. 6633/Del/2015 ITA No. 6634/Del/2015 ITA No. 6635/Del/2015 A.Y. 2013-14

Dr.Rajinder Parshad DCIT (TDS) Gupta vs. Gurgaon C/o Saraswati Hospital Old Delhi Gurgaon Road Gurgaon PAN: RTKR04155E (Appellant) (Respondent)

Appellant by Sh. Aashish Saraswat, Adv. Respondent by Shri Atiq Ahmad, Sr.D.R Date of Hearing 22nd November, 2017 Date of Pronouncement 29th November, 2017

ORDER PER BEENA A PILLAI, JUDICIAL MEMBER Present appeals have been filed by the assessee against the order dated 29/09/15 passed by Ld. CIT(A)-2, Gurgaon for assessment year 2013-14 on the following grounds.

ITA Nos. 6633-6634&6635/Del/15 AY 2013-14 Dr.Rajinder Parshad Gupta, Gurgaon “On the facts and circumstances of the case, the Ld.CIT(A) has erred in summarily dismissing the appeal without adjudicating the legality of the issues involved in appeal. 1. The mere default of filing one common appeal against order of TDS/CPC for quarter 4, of the FY 2012-13 (Assessment Year 2013-14), would not ipso facto lead to the dismissal of appeal. The default is clearly procedural and technical in nature. The provisions of the Act or where the breach flows from a bonafide behalf that the offender is liable to act in the manner prescribed under the statute, the bonafide of the appellant were therefore established. 2. On appeal being out of time: No explanation on this particular issue was sought during the course of hearing of this appeal. The penalty orders are system generated. No hearing was invited before the levy of penalty. It is informed that the appellant did not receive any such penalty order. The appellant came to know of the penalty order on receipt of show cause penalty notice u/s 221(1). Consequently, appeal was filed thereafter. Hence, the so called delay in filing of appeal. 3. Further as provided u/s 272A(4), no penalty can be levied unless an opportunity of being heard is granted to the assessee by the authority levying penalty. In fact no show cause penalty notice was issued. The violation of the aforesaid provision will

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ITA Nos. 6633-6634&6635/Del/15 AY 2013-14 Dr.Rajinder Parshad Gupta, Gurgaon violate the penalty proceedings. The penalty imposed thus observed to be quashed.” 2. Brief facts of the case are as under: Assessee was liable to deduct TDS under section 192 and 194J of the Act. Asessee received intimation under section 200 A of the Act, wherein interest was levied for late payment under section 234 E of the Act for the 4th quarter and for late filing of statement within the prescribed time period under section 200 (3) of the Act for 2nd and 3rd quarter. As per intimation received by assessee from TDS CPC, Ghaziabad the sum payable by assessee was as under: Quarter Particulars Amount-Rs. Second Late filing levy 23260.00 Third Late filing levy 35500.00 Fourth Under section 234E 10800.00

2.1. It was submitted by Ld.AR before us that demand being raised on assessee as above, came to its knowledge while processing TDS returns, and therefore there was a delay in filing the appeal before Ld. CIT (A). It has been submitted that assessee filed only one appeal against the order of CPC Ghaziabad for 3 different quarters for the year under consideration. It was for these 2 reasons that Ld. CIT (A) did not decide the issue on merits and dismissed the appeal for technical defaults. 2.2. Ld. DR placed reliance upon the orders of authorities below. 3. We have perused the submissions advanced by both the sides in the light of the records placed before us.

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ITA Nos. 6633-6634&6635/Del/15 AY 2013-14 Dr.Rajinder Parshad Gupta, Gurgaon 3.1. In the interest of natural justice, we are of the considered opinion that Ld.CIT(A) must decide the issue on merits. We accordingly set aside the issue back to the file of Ld.CIT(A) by condoning the delay if any in filing the appeal before the first appellate authority. Assessee is directed to file 3 separate appeals before Ld.CIT(A) in respect of the order passed by Ld.TDS/CPC passed for each quarter. 3.2. Accordingly the grounds raised in all the 3 appeals for the year under consideration filed before us are allowed for statistical purposes. 4. In the result appeals filed by assessee stand allowed for statistical purposes. Order pronounced in the open court on 29.11.2017.

Sd/ Sd/- (R.S. SYAL) (BEENA A PILLAI) Vice President Judicial Member

Dated 29th November, 2017.

*mv

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ITA Nos. 6633-6634&6635/Del/15 AY 2013-14 Dr.Rajinder Parshad Gupta, Gurgaon

Copy of the Order forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR 6. Guard File

By Order

Asst. Registrar ITAT, Delhi Benches, New Delhi

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ITA Nos. 6633-6634&6635/Del/15 AY 2013-14 Dr.Rajinder Parshad Gupta, Gurgaon

Date 1. Dragon dictation 23.11.2017 2. Draft placed before author 27.11.2017 3. Draft proposed & placed before the second Member 4. Approved Draft comes to SrPS/PS 5. Kept for pronouncement on 6. File sent to Bench Clerk 7. Order uploaded

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