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Income Tax Appellate Tribunal, JAIPUR BENCHES,’A’ JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 224/JP/2022
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,’A’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM deys’k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 224/JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2019-20 cuke Zila Parishad Baran Income Tax Officer TDS Vs. Zila Parisad, Station Road, Kota Baran LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: JDHZ00048G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Manish Agarwal (CA) jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehara (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 30/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 30/06/2022 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, A.M.
This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 26/04/2022 [here in after (NFAC)] for assessment year 2019-20 which in turn arises from the order passed by the Income Tax Officer, TDS, Kota, passed under Section 201(1)/201(1A) of r.w.s. 194C & 194A of the Income tax Act, 1961 (in short 'the Act') dated 04.06.2019.
2 ITA No. 224/JP/2022 Zila Parisad vs. ITO TDS 2. The assessee has taken following grounds in this appeal;
“1. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in dismissing appeal of assessee in limine, by not condoning the delay in filing appeal, that arose due to unavoidable circumstances.
On the facts and in the circumstances of the case and in law, ld. CIT(A) erred in confirming the order passed by ld. ITO TDS arbitrarily and by completely brushing aside the submission made and evidences adduced. Appellant prays that appeal of assessee deserved to be decided on merits.
2.1 That, ld.CIT(A) has further erred in confirming the TDS demand computed by ld. ITO TDS at Rs.57,39,901/- arbitrarily.
2.2 That, ld.CIT(A) has further erred in confirming the interest on TDS computed by ld. ITO TDS at Rs.5,45,119/- arbitrarily.
2.3. That ld. CIT(A) has erred in ignoring the fact that in case of payment to HUDCO, TDS was not required to be deducted by the assessee.
Without prejudice to ground of appeal no. 2.3 above, 2.4. Ld. CIT(A) has ignored the fact that the recipient company i.e. HUDCO has issued the certificate under Form 26A as prescribed in section 201 of the Income Tax Act, 1961, therefore the assessee shall not be deemed to be an assessee in default and accordingly not liable for the consequences for non- deduction of tax at source u/s 201 of the Income Tax Act, 1961. 3. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”
The fact as culled out from the records is that assessee is a Government Office. A TDS spot verification was carried out on 22/05/2019. In the case of the assessee during F.Y 2018-19, the assessee had made certain payments towards interest amounting to Rs.5,73,48,127/- and payments to certain news papers for publication of advertisement, amounting to Rs.60,642/ and
3 ITA No. 224/JP/2022 Zila Parisad vs. ITO TDS Rs.1,93,752/-respectively. The AO observed that no tax had been deducted on such payments under section 194A and 194C respectively. The AO issued a showcase notice to the Appellant on 23/05/2019 under section 201(1)/201(1A).
Being aggrieved, the assessee carried the matter in appeal before the ld CIT(A) and his relevant findings at para 5.4 is as under:-
“5.4 In the light of the above discussed facts of the case and placing reliance on the decision of the Hon’ble Supreme Court in the cases of University of Delhi vs. Union of India & Ors., discussed at preceding para 5.2 and Union of India & Ors vs. M/s Vishnu Aroma Pouching Pvt. Ltd. discussed at preceding para 5.3, the delay in filing the appeal cannot be condoned and thus the appeal being barred by time limitation under section 249(2), is dismissed as un-admitted.”
In ground no. 1 the assessee challenged the action of the ld. CIT (A) by arbitrarily dismissing the appeal of the assessee in limine, by not condoning the delay and without considering the fact that delay in filing the appeal is due to unavoidable circumstances.
Before us, the ld. A/R for the assessee has stated that assessee is a State Government body and not well versed with the taxation matters and acted in bonafide by trying to resolve the matter through constant correspondence with Income Tax Department and authorities of HUDCO after getting the order of assessment under section 201 of the I.T. Act, 1961 wherein the AO passed the order to deposit non deduction of tax of Rs. 57,39,901/- along with interest under section 201(1A) of Rs.5,45,119/- totaling Rs. 62,85,019,/-. Later on the assessee was advised to file appeal before the ld. CIT (A) and accordingly the appeal
4 ITA No. 224/JP/2022 Zila Parisad vs. ITO TDS was filed on 25.12.2019 with a delay of 168 days. The ld. A/R submitted that the delay was caused due to constant discussion with Income Tax Department and HUDCO and consultation with the assessee’s counsel. During the course of appellate hearing, the ld. Counsel for the assessee apprised the ld. CIT (A) all these facts and requested to condone the delay in filing of the appeal and prayed that the appeal be decided on merits. However, the ld. CIT (A) without considering request, grossly erred in dismissing the appeal on account of delay in filing of the appeal and without considering the case on merits, and relying on certain decisions observed that the reasons provided by the assessee are not sufficient to condone the delay. At the time of hearing, the ld. A/R drawn our attention to assessee’s paper book page 9 wherein vide Notification No. 26/2019/F. No. 275/15/2018-IT(B) dated 20th March, 2019 the CBDT has granted exemption from TDS under section 194A(3)(iii)(f) of the I.T. Act, 1961 to the HUDCO. The ld. A/R, therefore, submitted that the action of the ld. CIT (A) is totally unjustified in holding the assessee as assessee in default for non deduction of tax at source on the interest payment made to HUDCO. He further submitted that it is neither the case wherein casual approach is followed by assessee nor there is deliberate delay, instead there were sufficient causes which resulted in the delay in filing of the appeal before ld. CIT (A). The ld. A/R submitted that the case law relied upon by the ld. CIT (A) is distinguishable on facts as in that case no plausible explanation was offered for delay in filing the appeal rather lethargic approach was taken. Concluding the submission, the ld. A/R stated that the ld. CIT (A) dismissed the appeal of the assessee as un-admitted being barred by time limitation under section 249(2). The ld. A/R placing reliance on various decisions of Hon’ble High Courts and the decision of
5 ITA No. 224/JP/2022 Zila Parisad vs. ITO TDS Jaipur Bench of the Tribunal, prayed that the appeal of the assessee be restored back to the file of Assessing Officer after condoning the delay as assessee has in possession of necessary certificates which the AO can verify and pass the order accordingly.
On the other hand, the ld. D/R relied on the order of the lower authorities.
We have heard the rival submissions and perused the material available on record. Considering the totality of facts and circumstances of the case, we are of the view that the delay caused was beyond control of assessee. The assessee being a Government department, has to follow its rules and regulations and it is possible that assessee like Zila Parishad are less conversant with the Income-tax rules which has also caused delay in filing of the appeal before the ld. CIT (A). However, following the various judicial pronouncements of Hon’ble High Courts and decisions of Jaipur Bench of the Tribunal and in the interest of natural justice, we condone the delay of 168 days in filing of the appeal before the ld. CIT (A). From record it is seen that assessee has filed the certificate obtained from HUDCO before ld. CIT (A) also. However, the ld. CIT (A) has failed to appreciate the same. We, thus, we set aside the order of the ld. CIT (A) and remand the matter back to the record of the Assessing Officer for giving one more opportunity to the assessee to present its case and deciding the issue afresh on merits.
Since we have remanded the appeal to the file of Assessing Officer for deciding afresh on merits, the other grounds raised has become academic in nature and needs no adjudication.
6 ITA No. 224/JP/2022 Zila Parisad vs. ITO TDS 10. In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 30/06/2022. Sd/- Sd/- ¼ jkBkSM deys’k t;arHkkbZ ½ ¼ lanhi xkslkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 30/06/2022 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Zila Parishad, Baran 2. izR;FkhZ@ The Respondent- ITO TDS, Kota 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 224/JP/2022} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत