BANK OF INDIA,NAGPUR vs. JOINT COMMISSIONER OF INCOME TAX, TDS, RANGE-1, NAGPUR

Since the facts and solitary issue involved in these six appeals are identical, on the request of rival parties, and for the sake of brevity these are heard together for a common and consolidated order.

Briefly stated common facts of this bunch of cases are; 3.1 The assessee is a branch of Public Sector Banking Company viz; Bank of India owned by Central Government of India, in whose case an order u/s 201(1) & 201(1A) of the Act was passed by the Ld. ITO-TDS thereby raising a demand on account of failure to deduct tax at source [‘TDS’ hereinafter] u/s 194A of the Act from various amounts of interest paid/credited to various parties/customers on bank deposits etc.

During the course of virtual hearing, Ld. AR at the outset submitted that, the Co-ordinate bench vide its orders in dt. 23/08/2023 and ITA No. 153/NAG/2022 dt. 09/06/2022 adjudicated the quantum issue in favour of assessee holding that, order passed by Ld. ITO- TDS u/s 201(1) r.w.s. 201(1A) of the Act is barred by limitation. In the event following ‘foundation-superstructure theory’ the consequential orders passed levying penalty has no legs to stand now. Per contra, the Ld. Mr Marathe solidifying the facts submitted that, since impugned orders did not pass through its merits, therefore the contentions of appellant is pointless here. It is argued that, there was inordinate delay in filing appeals against the imposition of penalty u/s 271C of the Act before Ld. NFAC and appellant did fail to establish any reasonable cause beyond such unreasonable delay. Moreover, the appellant has merely filed these appeals without any petition for condonation and affidavit sufficiently explaining reasonable cause, in the event the Ld. NFAC dismissed them which cannot be faulted with now merely on the basis of quantum adjudication. Therefore, this bunch of six appeals of the appellant deserves no relief in the present adjudication.

We have heard rival parties’ submissions and perused the material placed on record in light of rule 18 of ITAT-Rules. At the outset we note that, against ITAT-Nagpur Page 3 of 6

As can be noted from above tabulation that, these appeals were filed with inordinate delays and admittedly without accompanying therewith petition for condonation of delay stating therein circumstance owning to which the delays occurred/caused. It is also on record that, the appellant having filed these appeals did fail to showcase to the satisfaction of appellate authority that there were reasonable cause beyond such inordinate delays so as to entitle to exoneration from penalty by virtue of section 273B of the Act. In the event the Ld. NFAC was constrained to dismiss the appeals in limine on technical grounds of limitation without touching or adjudicating merits thereof.

We however note that, while dismissing these appeals in limine on the grounds of limitation, the Ld. NFAC disregarded the fact that substantial part ITAT-Nagpur Page 4 of 6

In our considered view, non-filing of petition for condonation and explaining reasons of delay sufficiently is a technical but curable defect. Therefore, these defects by no means can solitarily capable of depriving the appellant from seeking adjudication on merits, unless such delay appearing to be deliberate. On the other hand, perusal of records in no manner is capable of suggesting us that the delay in filing the appeals before the Ld. NFAC by the appellant bank/branch was deliberate. Therefore, this technical reason should not take away the right of appellant to contest its cases on merits. In ‘Vijay Vishin Meghani Vs. DCIT & Anr’ reported at 398 ITR 250 (Bom) and ‘Collector, Land Acquisition, Anantnag and Anr. Vs Ms Katiji and Others’ reported at 167 ITR 5 (SC), their Hon’ble Lordship have categorically held that, ‘no one should be deprived of an adjudication on merits unless is found that the litigant deliberately delayed the filing of appeal.’ On the other hand, the Revenue did not bring anything to suggest that the delays in filing these appeals were thoughtful.

Further placing reliance on recent judgement of Hon’ble Supreme Court rendered in ‘Raheem Shah & ANR Vs Govind Singh & Ors’ [CIVIL APPEAL ITAT-Nagpur Page 5 of 6

In view of aforestated discussion, without offering any comments on merits of the case, in the larger interest of justice we deem it fit to set-aside these impugned orders and remit them back to the Ld. NFAC with a direction to deal therewith de-nova in accordance with law after considering the orders of Co-ordinate bench in appellant’s own pressed into service to which it had no benefit of consideration and pass a speaking order in terms of section 250(6) of the Act. Ergo ordered accordingly leaving all rights and liabilities of rival parties open.

In result, these six appeals are allowed for statistical purposes. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Friday, 22nd day of March, 2024.