AO (SC), AVVNL, SIKAR,SIKAR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CPC (TDS), GHAJIABAD

1 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh ,u-ds-lSuh] mik/;{k ,oa Jh lanhi x®lkÃa] U;kf;d lnL; ds le{k BEFORE: SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA Nos. 1349 to 1353/JP/2018 AY: 2013-14 (24Q 4, & 26Q2,), 2014-15 (26Q 1)2015-16 (24Q 4) & 2017-18(27EQ Q3) The Accounts Officer, AVVNL Vs. The ACIT, CPC 220, KV, G.S.S. AVVNL (TDS) Sabalpura Power House, Ghaziabad. Fatehpur Road, Sikar TAN No.: JDHA 02576A vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Ankur Salgia (CA) jktLo dh vksj ls@ Revenue by: Smt. Monisha Choudhary (JCIT)

lquokbZ dh rkjh[k@ Date of Hearing : 01/12/2021 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 14 /02/2022 vkns'k@ ORDER

PER: SANDEEP GOSAIN, J.M. The above mentioned appeals have been filed by the assessee against

different orders of the ld. CIT(A), Ajmer all dated 09/08/2018 for the A.Y.

2013-14 to 2015-16 & 2017-18 respectively. Since the grounds of appeal raised

by the assessee in all the above mentioned appeals are similar, therefore, for the

sake of convenience and brevity of the case, all these appeals of the assessee are

disposed off through this consolidated order.

2 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS)

2.1 For deciding the appeals, we take ITA No.1349/JP/1918 for the

Assessment Year 2013-14 as a lead case, in this appeal, wherein the assessee

has raised following grounds of appeal:

“In the facts & circumstances of the case the Ld. CIT Appeals, Ajmer has erred in not admitting the appeal for LATE FEES imposed u/s 234E Under clause c of subsection 1 of 200A. 1. The assesse has filed an appeal with Ld CIT(appeals) Ajmer which was technically delayed . The delay in filing the appeal was due to the fact that the appellant/applicant did not receive any intimation from department, On knowledge from portal the assesee comes to know and he filed an appeal thereof. 2. The Ld CIT(appeals) has erred in dismissing Appeal as not admitted the appeal on the basis of remand report from AO as Email communication is being effective from 20/10/2015 as per notification no 89/2015. Also NSDL made Mandatory in TDS return email on 13/04/2016. An Affidavit for non receiving was also produced to CIT (Appeals) Ajmer. 3. The Ld CIT(appeals) has erred in dismissing Appeal as not admitted without considering the case on merits. Refusing to condone delay has result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. 4. The assesse has filed an appeal with Ld CIT(appeals) JAIPUR against the intimation dated 25/08/2017 issued under section 200A OF IT ACT 1961 Levying late filing Fee of Rs 5600/- U/s 234 by ACIT, CPC(TDS) GHAJIYABAD, (TDS return Relates to 24Q 2nd Qtr. Financial year 2012-13. 5. As per provision of Sec. 234 E late fee cannot be recovered for TDS statements which were due for F.Y 2012-13 as well on TDS statements late fee cannot be recovered for F.Y 12-13 if not collected at the time of delivering TDS statements to the deptt. Provision of Sec. 234 E has been made applicant with effect from 1st July 2012. It states that "Amount of late fee shall be paid before delivering a TDS statement". It means that any late fee should have fee deposited just at the time of delivering TDS statements & not later than this . The authorized TIN-NSDL centre which accepted the TDS statements also

3 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) accepted there without late fee, as well as the software utility of the TDS deptt. It self accepted these without late fee. 6. The Tax was deducted & Deposited in time, the only default is delay in filing of the return ,the alleged delay in filing the TDS statement has not resulted in any loss of revenue to the department and, therefore, the default, if any, was purely venial breach . The assesse was being Electricity distribution working in public interest and there was no mala fide intention of not filing the TDS return at source within time. That when the TAX had been deposited in time, there could not have any object or intention as the part of assesse not to submit the return in time. 7. The learned CIT APPEALS erred in not relying on the Judgement of various ITAT benches, mentioned in written submissions. 8. In the facts & circumstances of the case the learned CIT APPEALS erred in confirming the order of AO imposing late fee without appreciating the facts & circumstances of the case and hence the same should be deleted.’’ 2.2 The hearing of the appeal was concluded through video conference in

view of the prevailing situation of Covid-19 Pandemic.

2.3 At the outset of the hearing, the Bench observed that the appeals filed by

the assessee are late by 20 days for which the ld. AR of the assessee filed the

application for condonation of delay with following prayers.

‘’Application for condonation of delay in Filing Anneal under Section 250 of the I.T. Act.

With reference to the above captioned matter, the applicant/appellant most humbly begs to submit the following reasons for your Honour's kind perusal: 1. That original appeal documents were filled on date 30/11/2018 with the honorable office.

4 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) 3. That the delay in filing the appeal was due to the fact that the appellant/applicant has to take permission from Corporate Office and after receiving sanction the appeal is being filed and hence the filing of the appeal was delayed. 4. That the appellant has got sincere desire and willingness to prosecute his appeal and had no intention to delay his case, and is keen to assist the Hon'ble chair in most appropriate and proper manner and there was most reasonable/sufficient cause beyond the control of the appellant which has resulted into delay in submission of appeal, if any. 5. The appellant cite judgments in support of his contention:- (a) Improvement Trust v. Ujagar Singh [2010] 6 SCC 786. (b) Poonja Arcade v. Asstt. CIT [2010] 326 ITR 123/191 Taxman 291 (Kar.) (c) Vedabai Vaijayanatabai Baburao Patil v. Shantaram Baburao Patii [2002] 253 ITR 798/122 Taxman 114 (SC) In view of the fact that the appeal was filed after the limitation period but the same was due to the reason beyond the control of the appellant/applicant, it is requested that delay in filing the appeal be condoned. Also the applicant/appellant cited judgment in case of State of Bihar Vs Kameshwar Prasad Singh (AIR 2000 SC 2006) wherein it was ruled that in the matter of condonation of delay, a liberal approach be adopted when such delay can result in a meritorious matter being thrown out and thus defeat the cause of justice. 2.4 To this effect, the assessee has also filed an affidavit giving the reason for

such delay in late filing the appeal before ITAT.

2.5 On the other hand, the ld. DR strongly opposed the application of the

assessee filed before us for condonation of delay. It was submitted by the ld.

5 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) DR that the assessee has made a habit of filing the appeals belatedly. Not only

this that the assessee has filed the appeals after expiry of statutory period before

the Tribunal. Even the conduct of the assessee shows that he has also filed the

appeals beyond the period of limitation before the ld. CIT(A) as well. Thus the

ld. DR prayed to dismiss the condonation application of the assessee filed

before us.

2.6 We have considered the submissions of both the parties and we have also

gone through the contents of the condonation application of the assessee

seeking condonation of delay in filing the appeal. It is noted from the available

records that the assessee had to take permission /sanction from the Corporate

Office for filing the appeals. Therefore, the delay took place in seeking the

permission from the Corporate Office which was beyond the control of the

assessee. In this view of the matter, we find that there is sufficient cause for

delay in late filing the appeal before us. It is also noted that the assessee was

prevented by sufficient cause which was beyond his control. To this effect, the

assessee has relied upon the decision of Hon'ble Supreme Court in the case

Vedabai Alias Vaijayanatabi Babu Rao Patil vs. Shanta Ram Babu Rao Patil

and Others reported in 253 ITR 798 (SC) wherein the Hon'ble Supreme Court

held as under:-

6 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) ‘’Limitation – Condonation of delay – ‘’Sufficient cause’’ for not preferring appeal or making application with prescribed period – where delay is only of a few days – ‘’Sufficient cause’’ to receive liberal construction – Approach of Courts to be pragmatic – Advancing of substantial justice of prime importance – Limitation Act. 1963, S 5.’’ We have also taken into consideration the decision of Hon'ble Supreme Court in

the case of Collector, land Acquisition vs. MSt. Katiji and Others, 167 ITR 471

(SC) on the issue of condonation of delay. We find that there is a sufficient

cause for condoning the delay in the institution of appeal by the assessee before

us. In this view of the matter, the delay in filing the appeal before us by the

assessee is condoned. Since the delay in filing the appeal by the assessee in

ITA No. 1349/JP/2018 is condoned, therefore, the decision taken by us in

condoning the delay in other appeals (supra) will apply mutatis mutandis.

3.1 Now we take up the appeal of the assessee in ITA No. 1349/JP/2018

wherein the main grievance of the assessee relates to challenging the action of

the ld. CIT(A) in dismissing the appeals ex parte without giving reasonable

opportunity of hearing to the assessee.

3.2 Apropos solitary ground of the assessee , the facts as emerges from the

order of the ld. CIT(A) is as under:-

3.3. Thus, from the report of the AO, it is clear that the notice of demand was sent to the appellant on 21-11-2013 on the email gusssawar@hotmail.com given by the appellant . As per Section 249(2), the appeal has to be presented within 30 days of date of service of notice of

7 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) demand. The appellant has not filed the appeal within the period specified u/s 249(2). There is an inordinate delay in filing the appeal . The appeal in his written submission has contended that mail was never received by the appellant. The appellant has not furnished any documentary evidence his argument. Therefore, the argument of the appellant is not accepted. I am of the considered view that the appellant did not have any sufficient cause for not presenting the appeal within the period specified u/s 249(2). Hence the appeal is dismissed as ‘’not admitted’’. 4. In the result, the appeal is dismissed.’’

3.3 During the course of hearing, the ld.AR of the assessee prayed that the ld.

CIT(A) erred in treating the order as communication date whereas as per

Income Tax Act and Rules the time of filing appeal has to be calculated from

the date of communication of order and not date of order. The ld.AR further

submitted that the assessee had not received any order vide E-Mail or Post and

the assessee came to know about the impugned order only upon receipt of

notice of demand and thereafter the assessee retrieved the same from traces

website. The ld.AR further submitted that the ld. CIT(A) had called report from

the AO but he did not consider the objections filed by the assessee. The ld.AR

further stressed upon his submission that the ld. CIT(A) had erred in not

considering the facts but rejected the appeal on admission stage and without

going into the merits of the case.. The ld.AR further submitted that the tax was

deducted and deposited in time but the default is delay in filing of the return

which has not resulted any loss of revenue to the Department. The assessee is a

8 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) Govt. Electricity company engaged in the distribution of electricity and the

assessee could not file the appeal before the ld. CIT(A) as the assessee neither

received any communication of order by post nor by E-Mail. Consequently, the

ld.AR of the assessee prayed that the ld. CIT(A) did not admit the appeal and

dismissed the same which should be allowed and re-heard on merit.

3.4 The ld. DR opposed the contentions of the ld.AR and relied upon the

order of the ld. CIT(A).

3.5 We have heard both the parties and perused the materials available on

record. We find from the records that the assessee is deprived of contesting his

case on merit before the ld. CIT(A) as the ld. CIT(A) has dismissed the appeal

‘’as not admitted’’ because of not filing the appeal within the period specified

u/s 249(2). The ld. CIT(A) has in his order mentioned that assessee had

contended that the E-Mail was not received by him but the assessee could not

furnish any documentary to substantiate his arguments. It may be mentioned

that the assessee is a Govt. Public Sector Company which deals in distribution

of electricity and officials has to seek permission/sanction from Corporate

Office for filing the appeal before the concerned authority and sometimes the

delay occurs in timely obtaining the approval which does not mean that the

assessee has mala fide intention in not submitting the appeal in time. As regards

9 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) the sufficiency of cause for filing the appeals belatedly before ld. CIT(A), it is

settled principles of law that the Courts have to take liberal approach while

interpreting the expression ‘sufficient cause’ for condonation of delay. In case

of Collector, Land Acquisition Vs. Mst. Katiji (1987) 167 ITR 471, the

Hon’ble Supreme Court has laid down the principle that the power to condone

the delay provided under the statute is to enable the Courts to do substantial

justice to the parties by disposing of the matter on merits, therefore, while

considering the matters for condonation of delay, the law must be applied in a

meaningful manner which subserves ends of justice and technical

considerations should not come on the way of cause of substantial justice. There

is no quarrel that the explanation and reasons explained for delay must be

bonafide and not merely a device to cover an ulterior purpose such as latches on

the part of the litigant or an attempt to save limitation in the underhand way. If

the party who is seeking condonation of delay has not acted in mala fide

manner and reasons explained are factually correct then the Court should be

liberal in construing the sufficient cause and lean in favour of such party. A

justice-oriented approach has to be taken while deciding the matter for

condonation of delay. However, this does not mean that a litigant gets free right

to approach the court at its will.

10 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) 3.6 Be that as it may, if we apply the settled principles as laid down by the

Hon’ble Supreme Court as well as other courts on the facts of the present case,

then taking into consideration, the facts of the present case, we find that the

assessee has explained cause of delay, therefore, in the facts and circumstances

of the case, we condone the delay in filing the appeal before the ld. CIT(A)

and thus remand the matter back to the record of the ld. CIT(A) for deciding

the appeal afresh on merits after giving an opportunity of hearing to the

assessee. The assessee is also directed to cooperate with the ld. CIT(A) in

deciding the appeal on merits and without any sufficient reason, not to take

further adjournments. If the assessee takes adjournment without any sufficient

and plausible reason, then the ld. CIT(A) is at liberty to pass order in

accordance with material available on record.

3.7. Before parting, we may make it clear that our decision to restore the

matter back to the file of ld. CIT(A) shall in no way be construed as having any

reflection or expression on the merits of the dispute, which shall be adjudicated

by ld. CIT(A) independently in accordance with law. Consequently the appeal

of the assessee is restored back to the file of the ld. CIT(A) for afresh decision

by providing adequate opportunity of being heard to the assessee and the appeal

of the assessee is allowed for Statistical purposes.

11 ITA No. 1349/JP/2018 AO(SC) AVVNL, Sikar Vs ACIT, CPC (TDS) 3.8 Since the appeal of the assessee in ITA No. 1349/JP/2018 is restored

back to the file of the ld. CIT(A) for afresh decision as mentioned above,

therefore, the same decision will apply mutatis mutandis in other appeals of the

assessee mentioned hereinabove

4.0 In the result, appeals of the assessee are allowed for statistical purposes

only. Order pronounced in the open court on 14th FEB 2022

Sd/- Sd/- ,u-ds-lSuh ¼lanhi x®lkÃa½ (N.K. SAINI) (SANDEEP GOSAIN) mik/;{k @Vice President U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 14/02/2022 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- The Accounts Officer (SC), AVVNL, Sikar. 1. 2. izR;FkhZ@ The Respondent- The ACIT, CPCP (TDS), Ghaziabad. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1349 to 1353/JP/2018) 6.

vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत