Income Tax Appellate Tribunal - Ahmedabad
Aayushi Benefit Trust, , Surat vs Assessee on 29 August, 2016
आयकर अपीलीय अिधकरण,
अिधकरण अहमदाबाद यायपीठ 'ए' अहमदाबाद।
IN THE INCOME TAX APPELLATE TRIBUNAL
"A" BENCH, AHMEDABAD
BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND
SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
आयकर अपील सं./ ITA No. 1440/Ahd/2015
धा
रण वष
/Assessment Year: 2015-16
Aayushi Benefit Trust, DCIT (TDS)
Samaysar Bunglow, Near Vs Surat
Nandini-3, VIP Road, Vesu,
Surat-395007
PAN : AACTA 9498 C
आयकर अपील सं./ ITA No. 1441/Ahd/2015
धा
रण वष
/Assessment Year: 2015-16
Smt. Nika Yogesh Shah, DCIT (TDS)
Samaysar Bunglow, Near Vs Surat
Nandini-3, VIP Road, Vesu,
Surat-395007
PAN : AAQPS 0798 F
अपीलाथ
/ (Appellant)
यथ
/ (Respondent)
Assessee(s) by : Shri Himanshu Gandhi, AR
Revenue by : Shri K. Madhusudan, Sr DR
सुनवाई क तारीख/ Date of Hearing : 29/08/2016
घोषणा क तारीख / Date of Pronouncement: 29/08/2016
आदेश/O R D E R
PER R.P. TOLANI, JUDICIAL MEMBER:-
These two appeals by different assessees are directed against the order of the ld. CIT(A)-3, Surat, Surat dated 09.04.2015 in the case of Aayushi Benefit Trust and against the order of ld. CIT(A)-3, Surat dated 24.04.2015 in the case of Smt. Nika Yogesh Shah, both passed for AY 2015- 2016. Since common issues involved in both the appeals, these appeals were heard together and are being disposed of by this consolidated order for the sake of convenience.
ITA Nos. 1440 & 1441 Ahd 2015 Aayushi Benefit Trust & Nika Yogesh Shah vs. DCIT AY : 2015-16 2
2. The respective grounds raised are as under:-
ITA No.1440/Ahd/2015 Assessee:-Aayushi Benefit Trust1. On the facts and circumstances of the case and law, the Ld. CIT (A) erred in passing the ex-party order without giving fair opportunity of being heard.
2. On the facts and circumstances of the case and law, the Ld. CIT(A) failed to consider that TDS was deducted u/s 195 (and not u/s 194IA) as the transferor is non-resident (clearly mention in Statement of Facts), therefore appellant had rightly filed the form no.26Q for which TAN number is must.
3. On the facts and circumstances of case and law, the Ld. CIT (A) erred in confirming the levy of interest u/s 201 (1A) amount Rs.6,00,195/- .
4. On the facts and circumstances of case and law, the Ld. CIT (A) failed to appreciate that there is no delay on part of appellant for making payment of TDS.
5. On the facts and circumstances, of case and law, the Ld. CIT (A) erred in enhancing and directing the ACIT (TDS), Surat to levy the penalty of late filing fees without giving opportunity of being heard and without considering the facts that there is no delay in filing TDS return.ITA No.1441/Ahd/2015 Assessee:-Smt. Nika Yogesh Shah
1. On the facts and circumstances of the case and law, the Ld. CIT (A) erred in passing the ex-party order without giving fair opportunity of being heard.
2. On the facts and circumstances of the case and law, the Ld. CIT(A) failed to consider that TDS was deducted u/s 195 (and not u/s 194IA) as the transferor is non-resident (clearly mention in Statement of Facts), therefore appellant had rightly filed the form no.26Q for which TAN number is must.
3. On the facts and circumstances of case and law, the Ld. CIT (A) erred in confirming the levy of interest u/s 201 (1A) amount RS. 66,690/- .
4. On the facts and circumstances of case and law, the Ld. CIT (A) failed to appreciate that there is no delay on part of appellant for making payment of TDS.
5. On the facts and circumstances, of case and law, the Ld. CIT (A) erred in enhancing and directing the ACIT (TDS), Surat to levy the penalty of late filing fees without giving opportunity of being heard and without considering the facts that there is no delay in filing TDS return.
ITA Nos. 1440 & 1441 Ahd 2015 Aayushi Benefit Trust & Nika Yogesh Shah vs. DCIT AY : 2015-16 3
3. Ld. Counsel for the assessee, at the outset, contends that both the orders were passed by ld. CIT(A) ex-parte by following observations:-
"4. In response to the notice u/s 250 dated 17.03.2014 there has been no compliance from the appellant, on the date of hearing i.e. 08.04.2015. The notice was set by speed post. The speed post record shows that the appellant has moved from that address. However, there is no other address available on record. No 'Power of Attorney' has been filed along with form no.35. Therefore, even the authorized representative (if any) cannot be informed. Therefore, the appeal is being decided on the basis of facts available on record."
3.1 It is contended that....
(i) The assessee has never been heard on the issue. The assessee has duly paid the tax immediately after the TAN number was allotted.
The delay for which interest is charged was not caused by the fault of assessee(s) inasmuch as immediately on allotment of TAN the payment was made. Without TAN number, the assessee could not have made the payment.
(ii) Since the assessees' appeals have been dismissed ex-parte, the assessee has never been heard. The impugned ex-parte orders have been passed, dismissing the appeals of the assessee(s), merely by observing that the assessee(s) has moved from the address.
(iii) The assessee filed an application u/s 154 before the ld. CIT(A) raising these contentions but the same has been dismissed. Thus, the assessee(s) was left without just and proper remedy.
(iv) The principles of natural justice remain un-complied with inasmuch as the assessees have never been heard on the issue.
ITA Nos. 1440 & 1441 Ahd 2015 Aayushi Benefit Trust & Nika Yogesh Shah vs. DCIT AY : 2015-16 4
(v) Ld. Counsel pleads that the in the interest of natural justice the issues raised in these appeals may be restored back to the file of ld. CIT(A) to decide the same afresh after giving the assessee adequate opportunity of being heard.
4. Ld. Departmental Representative is heard.
5. We have heard the rival contentions, perused the material available on record and gone through the orders of the lower authorities. In the entirety of facts and circumstances of the case, we are of the view that the assessee(s) has not been given adequate opportunity of being heard. Therefore, in the interest of justice, we are inclined to set aside the issues raised in these appeals back to the file of the ld. CIT(A) to decide the same afresh after providing adequate opportunity of hearing to the assessee.
6. In the result, assessees' appeals are allowed for statistical purposes.
Order pronounced in the Court on 29th August, 2016 at Ahmedabad.
Sd/- Sd/-
(N.K. BILLAIYA) (R.P. TOLANI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 29/08/2016
*Biju T.
आदेश क ितिलिप अ ेिषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबंिधत आयकर आयु / Concerned CIT
4. आयकर आयु (अपील) / The CIT(A)
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदेशानुसार/ BY ORDER, TRUE COPY उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलीय अिधकरण, अहमदाबाद / ITAT, Ahmedabad