Income Tax Appellate Tribunal - Cochin
Ernakulam District Co-Op Bank Ltd, ... vs The Ito(Tds), Cochin on 1 June, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL
COCHIN BENCH, COCHIN
BEFORE S/SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., JM
I.T.A. No. 48/Coch/2017
Assessment Year : 2010-11
The Ernakulam District Co- Vs. The I.T.O.(TDS), Kochi
operative Bank Ltd.,
Kothamangalam Main branch,
Kothamangalam,
Ernakulam-686 691.
[PAN: AABAT 4386L]
(Assessee-Appellant) (Revenue-Respondent)
Assessee by Shri Radhesh Bhat, CA
Revenue by Shri A. Dhanaraj, Sr. DR
Date of hearing 31/05/2018
Date of pronouncement 01/06/2018
ORDER
Per CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal filed by the assessee is directed against the order of the CIT(A) dated 19/12/2016 and pertains to assessment year 2010-11.
2. The facts of the case are that the assessee is one of the leading co-operative banks in Kerala. A survey u/s. 133A of the I.T. Act was carried out in the main branch of Ernakulam District Co-operative Bank on 20/12/2010 and during the survey it was noticed that the assessee failed to deduct tax at source u/s. 194A of the IT Act from the interest paid/credited to various persons. The Assessing I.T.A. No.48/C/2017 Officer, therefore, initiated proceedings and passed the order u/s. 201(1) of the Act on 25/10/2012 with a demand of Rs.5,06,336/-.
3. The assessee went in appeal before the CIT(A). The CIT(A) observed that there was a delay of 426 days in filing the appeal him. . Before the CIT(A), the assessee filed a condonation petition as under:
"The above delay in filing the appeal was caused due to reasons totally beyond the control of your petitioner that the concerned department has inadvertently omitted to take the necessary steps for filing the appeal on time. It is submitted that the delay was caused due to reasons totally beyond the control of the petitioner, which was not intentional. It is therefore prayed that the delay in filing the appeal may be kindly condoned by the Commissioner of Income Tax(Appeals) and taken the appeals on record."
4. The CIT(A) dismissed the appeal of the assessee without condoning the delay by observing that filing of appeal is a right available to the assessee but the same has to confirm to the due procedures as prescribed u/s. 249 of the I.T. Act. According to the CIT(A), not filing the appeal within the prescribed time limit empowers the CIT(A) not to admit the appeal and unless the assessee had sufficient cause for not filing the appeal within the prescribed time limit. In the present case the reasons stated by the assessee was that the concerned department inadvertently omitted to take the necessary steps for filing the appeal on time. This reason, according to the CIT(A), is not acceptable because is is very vague and the assessee has not explained properly with specific reasons for the long delay of 426 days in filing the appeal. Therefore, the 2 I.T.A. No.48/C/2017 CIT(A) rejected the condonation petition filed by the assessee and dismissed the appeal.
5. Against this, the assessee is in appeal before the Tribunal with the following grounds:
1) The CIT(A) erred in rejecting the appeal filed by the assessee against the order of ITO(TDS) dated 25/10/2012 u/s. 201(1) of the Income Tax Act as per which the ITO has raised a demand of Rs.506336/- towards non-deduction of TDS, on the ground that the appellant had not filed the appeal within the prescribed limit.
2) The ld. CIT(A) ought to have found that the delay was caused due to reasons totally beyond the control of the appellant, which was not intentional. The Ld. CIT(A) ought to have condoned the delay in filing the appeal and considered the appeal on merits of the case.
6. We have heard the rival submissions and perused the record. The assessee has filed the condonation petition signed by the General Manager of the Co- operative Bank along with the affidavit explaining the reasons for the delay as under:
"1. The petitioner is Cooperative Bank, operating with more than 50 branches in the Dist. of Ernakulam.
2. The ITO (TDS), Kochi issued an order on 25.10.2012 treating the Kothamangalam Main branch of the petitioner Bank as an assessee in default u/s.201(l) of the Income Tax Act (Act) for not deduction tax U/S.194A of the Act and determined an amount of Rs 5,06,336/- as payable. The order was received by the Branch on 29.10.2012. The petitioner, not having accepted the order, ought to have filed appeal before the CIT (A) on or before 27.11.2012. However, the appeal was filed before the CIT (A) only on 27.01.2014, with a delay of 426 days.3
I.T.A. No.48/C/2017
3. On receipt of the order u/s.201(l) of the Act, the Branch manager ought to have forwarded the order to the Head office for taking up the matter with the Consultant for filing appeal. However, the Branch manager concluded that the income tax proceedings came to a conclusion on issue of order by the AO and also that the defects pointed out by the AO-TDS can be cured by filing/obtaining the Form 15 G/ H or deducting and paying tax. For the above reasons, the branch manager did not take up the matter with the Head Office.
4. Subsequently the Branch was served order u/s.201(lA) of the Act on the same issue for the same assessment year and the said order was forwarded to Head Office for further action. The Head Office on taking up the matter with the consultant for filing of appeal before CIT (A), realized that there had already been an order u/s.201(l) of the IT Act, served on the Branch on the same matter.
5. The Head Office then took steps to file appeal with the CIT (A) against the order u/s 201 (1), with a condonation of delay.
6. It is submitted that the delay was caused due to reasons totally beyond the control of the Petitioner and was not intentional.
7. It is therefore prayed that the Hon Bench may kindly condone the delay and direct the CIT (A) to take the appeal on merits and dispose off accordingly."
6.1 At the outset, it is noticed that there was a delay in filing the appeal before the CIT(A). However, there was no valid condonation petition filed by the assessee and also the assessee has not given good and sufficient reason to condone the delay. As such, the CIT(A) rejected the appeal of the assessee. In our opinion, the appeal of the assessee is to be decided by the CIT(A) as to whether it is duly signed in terms of section 140(c) of the I.T. Act and also if he finds that it is a valid appeal, then he has to decide the issue of condonation of delay and to decide the appeal on the merits of the issue raised by the assessee, 4 I.T.A. No.48/C/2017 if required. With this observation, we remit the appeal to the file of the CIT(A) de nova.
7. In the result, the appeal filed by the assessee is allowed for statistical purposes. .
Order pronounced in the open Court on this 1st June, 2018.
sd/- sd/-
(GEORGE GEORGE K.) (CHANDRA POOJARI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Place:
Dated: 1st June, 2018
GJ
Copy to:
1. The Ernakulam District Co-operative Bank Ltd., Kothamangalam Main branch, Kothamangalam, Ernakulam--686 691.
2. The Income Tax Officer(TDS), Kochi.
3. The Commissioner of Income-tax(Appeals)-III, Kochi
4. The Pr. Commissioner of Income-tax, Kochi
5. D.R., I.T.A.T., Cochin Bench, Cochin.
6. Guard File.
By Order (ASSISTANT REGISTRAR) I.T.A.T., Cochin 5