Income Tax Appellate Tribunal - Raipur
Block Education Officer, Durg, Durg vs Income Tax Officer (Tds), Bhilai, Durg on 29 January, 2024
आयकर अपीलीय अिधकरण, रायपुर यायपीठ, रायपुर
IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR
ी र वश सूद, याियक सद य एवं ी अ ण खोड़ पया, लेखा सद य के सम ।
BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM
(ITA No. 364, 365,366,367 & 368/RPR/2023)
(Assessment Year: 2012-13,2013-14,2014-15,2015-16 & 2016-17)
Sr. ITA Name of Appellant Name of Respondent Assessment
No. Nos. year
01 364 2012-13
Block Education Officer, The Income Tax Officer
02 365 2013-14
G.E. Road, Durg-491001 (TDS), Aayakar Bhawan,
03 366 2014-15
(C.G.) New Civic Centre, Bhilai-
04 367 2015-16
TAN: JBPB01308G 490006
05 368 2016-17
िनधा रती क ओर से /Assessee by : Shri S. R. Rao, Adv.
राज व क ओर से /Revenue by : Shri Satya Prakash Sharma, Sr. DR
सुनवाई क तार ख/ Date of Hearing : 24.01.2 024
घोषणा क तार ख/Date of : 29.01.2 024
Pronouncement
आदे श / O R D E R
Per Arun Khodpia, AM:
The captioned appeals filed by the assessee are directed against the respective orders (details in chart affixed hereunder) of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, which in turn arose from the respective orders passed by the Income Tax Officer (TDS), Bhilai u/s 201(1) & 201(1A) of the Income Tax Act, 1961 (In short 'The Act') for the assessment years 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17.
2
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
2. As all the present appeals pertains to the same assessee, involving identical issues, though for different assessment years, therefore, all these appeals have been taken up and disposed off by way of a consolidated order.
3. As a lead case, we shall be taking-up ITA No. 364/RPR/2023 for the assessment year 2012-13 to deliberate upon and to adjudicate on the issue involved, our order wherein passed, shall mutatis mutandis apply to the remaining appeals.
4. The assessee has raised following grounds of appeal in ITA No. 364/RPR/2023:
1) In the facts and circumstances of, the case and in law, the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the action of Ld. Income-tax Officer (TDS) treating the appellant as assessee in default and working out total demand payable at Rs.4,30,668/- u/ s 201(1) /201(1A) of the Income-tax Act, 1961.
2) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals) has erred confirming action of Id. Assessing Officer treating the appellant as assessee in default and working out total demand payable at Rs.4,30,668/- u/s 201(1)/201(1A) ignoring the fact that the recipient is registered u/s. 12AA of the Act and has filed its return of income taking the sum received on which TDS was not made for computing income.
3) The impugned order is bad in law and on facts. 3
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
4) The appellant reserves the right to add, alter or omit all or any of the grounds of appeal in the interest of justice.
5. At the threshold of the hearing, it is observed that the present appeals filed by the assessee are barred by limitation involving delay in filing of the appeals, the details of such delay are set out as under:
Sr. Name of Assessee Appeal Date of CIT Due date of Actual date of Delay No. No. order filing of filing of in appeal appeal days (1) (2) (3) (4) (5) (6) (7 = 6-5) 01 364 12.09.2022 11.11.2022 01.12.2023 384 02 365 12.09.2022 11.11.2022 01.12.2023 384 Block Education 03 Officer, G.E. 366 12.09.2022 11.11.2022 01.12.2023 384 Road, Durg-
04 491001 (C.G.) 367 13.09.2022 12.11.2022 01.12.2023 383 05 368 13.09.2022 12.11.2022 01.12.2023 383
6. Regarding the aforesaid delays, Ld. AR for the assessee has submitted before us, an application for condonation of delay in filing of the appeal along with copy of notice initiating proceedings u/s 133(6) regarding persuasion by ITO (TDS), Bhilai to pay the outstanding demand raised u/s 201(1) & 201(1A) of the I.T. Act. and an affidavit of the assessee. For the sake of completeness of facts, the copy of the application for condonation of delay along with the enclosed documents is extracted as under:4
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg Name of the Appellant Block Education Officer TAN No. JBPB01308G Assessment year 2012-13 Date 11/01/2024 ITA No. 364/RPR /2023 Application for condonation of delay in filing appeal Hon'ble Sir, In connection with the above matter, the appellant humbly submits as under: -
1. That the appellant is a government authority, inter-alia functions as Nodal Agency for implementation of National Programme of Nutritional Support to Primary Education 2006 Mid-Day Meal Scheme (Program) conducted by Govt. of India through specific guidelines.
2. In its case survey u/ s 133A of the Income-tax Act, 1961 was conducted by TDS Wing. Subsequently, order u/ s 201 (1) and 201(1A) of the Act was passed on 26/03/2019 for F. Yrs 2011-12 to 15-16 and aggregate demand of Rs.29,53,248/- was created treating the applicant as assessee in default for reasons of failure to make deduction of tax u/ s 194C from amounts paid to Akshaypatra Foundation, Bhilai towards cooking cost and supply of Mid-day meal to various govt. schools located in Bhilai Municipal Area.
3. Aggrieved from the order of Id. Income-tax Officer the appellant file appeal before the Ld. Commissioner of Incometax (Appeals) on 26/04/2019.
4. That the Id. Commissioner of Income-tax (Appeals) decided the appeal ex-parte u/s.250 on 12/09/2022.5
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
5. That the appellant received letter dtd. 31/03/2023 from ITO(TDS), Bhilai requesting to make payment of outstanding demand for the relevant Assessment years. Copy of letter is enclosed herewith as Annexure-I for kind perusal.
6. That immediately after receipt of letter the applicant checked ITBA portal and came to know that the appeal was decided ex-parte on 12/09/2022. The appellant neither received notice u/s.250 nor appellate order earlier.
7. That the applicant did not receive any of the notice for hearing u/s 250 of the Act and came to know about the order only on 31/03/2023 while filing reply to the recovery of demand notice.
8. That though the applicant came to know the order only on 31/03/2023. Since the appeal order is dated 12/09/2022 as a matter of abundant precaution the applicant is filing present application of condonation of delay of 388 days in filing of appeal.
9. In merits, facts and legal position the appellant believes that there are fair chances of substantial relief in appeal and balance of convenience is in its favour.
10. That in the facts and circumstances of the case it is humbly prayed that the Hon'ble Tribunal may be pleased to condone the delay and admit the appeal for adjudication in the interest of justice.
11. An affidavit in support of application is being filed. 6 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg 7 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg 8 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
7. Backed by the aforesaid submissions, Ld. AR explained that the delay was on account of (i) that the order of Commissioner of Appeal was ex-parte, the appellate neither received notice u/s 250 nor the appellate order in time, (ii) The appellant has come to know about the order only on 31.03.2023, while filing reply to the recovery of demand notice. (iii) that on facts and legal position the appellant believes that there are fair chances of substantial relief in appeal and balance of convenience in its Favor. Ld. AR further submitted that the delay involved in filing of the appeal has occasioned due to bonafide reasons and not on account of malafide intentions of the assessee, therefore, the same in all fairness be condoned.
8. Ld. AR further in order to strengthen the contentions that the delay should be condoned, has placed reliance on following judgments:
1. Collector, Land Acquisition vs. Katiji and others, 1987 (2) TMI 61-SC.
Held that:- There is no warrant for according a step-motherly treatment when the " State " is the applicant praying for condonation of delay. In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status. The courts, therefore, have to be informed of spirit and philosophy of the provision in the course of the interpretation of the expression " sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter 9 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court.
2. M/s Karnataka Forest Development Corporation Ltd. vs. ACIT
6. The affidavit filed in support of the application condonation of delay discloses that, after the order was passed by the Commissioner for Appeals, there was a change of Managing Director though the Chartered Accountant of the Company opined that it a fit case appeal and prepared the papers and even sent them to the Managing Director for signature, It is because of the change of the Managing Director, the importance of the same was not noticed and as it is a Government company they took their own time to get the papers signed and to file the appeal. It is in these circumstances, there is a delay of 310 days. The Tribunal has viewed the matter from the very narrow angle. No doubt, it is the law that every day's delay has to explained, but, at the same time here, where government is the appellant, having regard to the way that the government and its officers' functions, the courts have been taking lenient view in condoning the delay appeals filed by them. In the instant cases it is not disputed after the order came to be passe, the Managing Director was changed and thereafter, the Chartered Accountant took a decision to prefer the appeal and though papers were sent for signature was not signed and appeal was not filed. What is to be seen in such matters is that the appellant was negligent and by not filing the appeal within time, whether there is any valuable right of the appellant, which would be taken away by not condoning the delay in the matters arising under the Income Tax Act, ultimately the question is, what is the tax payable under law. it is not an adversary litigation. An assessee cannot be charged without statutory authority Under these circumstances, the approach of the Tribunal cannot be accepted. In that view of the matter, the reasoning given by the Tribunal for not condoning the delay is unsustainable in law. Hence we are satisfied that the appellant has made out a sufficient cause for condoning the delay in preferring the appeal. 10
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
3. State of West Bengal vs. Administrator, Howrah Municipality AIR 1972 SC 749
4. Shakuntala Devi Jain vs. Kuntal Kumhari and Ors. 1968 (9) TMI 116-SC.
5. The Dy. Commissioner of Income Tax, Circile-4(1), Raipur Vs. Chhattisgarh State Electricity Board 2023 (10) TMI 25 ITAT, Raipur
9. Placing reliance on the aforesaid judgments, Ld. AR requested to condone the delay in filing of the appeal and to admit the appeals for adjudication.
10. On the contrary, Ld. Sr. DR vehemently opposed the delay in filing of the present appeals, it is pointed out by Ld. Sr. DR that the delay involved in the present appeals are inordinate. He specifically mentioned that the Assessee's conduct was not in the nature of a law abiding taxpayer which is evident from the order of Ld. CIT(A) that the assessee has not made any submission despite several opportunities extended to it. Further, Ld. Sr. DR, contradicted the contentions of the assessee that they have not received the notices u/s 250 or the appellate order cannot be believed since all such communications were available on ITBA portal which the assessee is supposed to access from time to time, also it is admitted by the assessee vide para 6 of the application for condonation of delay, that when the applicant has checked ITBA portal they come to know that the appeal was 11 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg decided ex-parte on 12.09.2022, thus, it is indisputably clear that all the communication from department were made and served on the assessee in accordance with the provisions of the Act. With such agitations, Ld. Sr. DR prayed to reject the request of the assessee seeking condonation of delay in filing of the appeal in the present cases.
11. We have considered the submissions of for the parties, perused the material available on record and case laws submitted by the Ld. AR on behalf of the assessee to support the contention to condone the delay involved in filing of appeal before us. Admittedly in the present case the assessee has filed the appeal with delay of 384 days (which the assessee has mentioned as 388 days), such delay as rightly alleged by revenue is an inordinate delay. Although the claim of Ld. AR that the delay involved in filing of present appeal has occurred on account of non-receipt of notice u/s 250 and the appellate order passed on 12.09.2022 but the assessee was duty bound to access the portal without fail, specially when the appeal has been filed at the instance of the assessee appellant. It is also an admitted fact as accepted by the assessee appellant that it had come to know about the appellate order passed by Ld. CIT(A), immediately, when they visited the ITBA portal, may be only when they were prompted after receipt of letter from the Ld. AO u/s 133(6) dated 31.03.2023. We also find force in the argument of the Ld. Sr. DR that immediately on 12 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg receipt of the said letter dated 31.03.2023, the applicant has checked the ITBA portal and came to know that appeal of the assessee was decided ex-parte on 12.09.2022, this establishes that the order was already uploaded on the portal which the assessee has not accessed. Assessee's insincerity towards tax compliances is further proved that even after receipt of communication u/s 133(6) and on being aware about the facts that the ex-parte order by Ld. CIT(A) was passed on 12.09.2022, the assessee has taken further 9 months (01.04.2023 to 30.11.2023) i.e., 244 days in filing of the appeal before the ITAT, such factual position of the case shows that the assessee has not made any serious efforts in filing of the appeal despite was informed that an ex-parte order has already been passed. It is also discernible from the records that before Ld. CIT(A), during the appellate proceedings the assessee was not attentive in discharging the onus cost upon it to make considerable efforts or necessary arrangements to assist in the proceedings, It is therefore, can be safely concluded that the assessee has deliberately chosen to adopt a lackadaisical approach and callous conduct during the said appellate proceedings. Even after when the letter u/s 133(6) dated 31.03.2023 was received, and the fact that an ex-parte order has been passed by the Ld. CIT(A) wayback on 12.09.2022, the appellant assessee continuing with the same careless approach took another 9 months' time in filing the appeal before the tribunal. Such conduct of the assessee shows that the reasons offered by the assessee towards seeking the 13 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg condonations in delay in filing of appeal are not reasonable neither the same constitutes any sufficient cause towards the delay. Under such facts and circumstances, there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, we may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act. We draw support on this aspect from the decision in ITA no. 323 to 341/RPR/2023 dated 05.12.2023 by SMC bench, Raipur wherein, on a similar issue, the observations of tribunal are as under:
15. At this stage, I may herein observe that where an application for condonation of delay has been moved bonafide, then, the Court would normally condone the delay, but where the delay has not been explained at all and in fact there is an unexplained and inordinate delay coupled with negligence or sheer carelessness, then, the discretion of the court in such cases would normally tilt against the applicant. My aforesaid conviction is supported by the order of "Division Bench" of the ITAT, Mumbai in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in ITA No.6240/MUM/2007 for A.Y.1999-
2000, dated 23.03.2020. Reverting to the facts of the present case, I have already examined the reasons that had led to the inordinate 14 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg delay, which has not been explained by the assessee society to have occasioned due to bonafide reasons. As observed by me hereinabove, as there was no justifiable reason for the assessee society to file the present appeal after 493 days from the lapse of the prescribed period, therefore, 21 ITA No. 323/RPR/2023 & 18 Others Gramin Sewa Sahakari Samiti Maryadit there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, I may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.
16. I may herein observe that in the case of State of West Bengal Vs. Administrator, Howrah 1972 AIR SC 749, the Hon'ble Apex Court had held that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay. The expression "sufficient cause" will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as observed by me hereinabove, as the assessee appellant in the present case had acted in defiance of law, therefore, there can be no reason to allow its application and condone the substantial delay of 493 days involved in preferring of the captioned appeal. 15
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
17. Also, I may herein draw support from a "Third Member"
decision of the Tribunal, in the case of Jt. CIT Vs. Tractors and Farm Equipments Ltd. (2007) 104 ITD 149 (Chennai), wherein a fine distinction was drawn between normal delay and inordinate delay. It was held as under: 22 ITA No. 323/RPR/2023 & 18 Others Gramin Sewa Sahakari Samiti Maryadit "A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case no such consideration may arise and such a case deserves a liberal approach." In the present case before me, the delay of 493 days cannot be simply condoned on the basis of the hollow claim of the assessee that the same had occasioned for the multi facet reasons, viz. (i) that as the earlier chartered accountant of the assessee society, viz. Shri Rakesh Khandelwal who was looking after the matter before the CIT(Appeals) had unfortunately expired in the month of April, 2021, therefore, its case for the said reason had, thereafter, remained unattended; (ii) that the assessee society is based in a rural area; (iii) that the staff of the assessee society which was working under the Government supervision and Jila Sahakari Bank in a rural area, was not computer literate; (iv) that books of the account of the assessee society was being manually maintained; and
(v) that access of internet was also not proper in the rural area where the assessee society was based. As observed by me hereinabove, 16 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg the conduct of the assessee society reveals beyond doubt that the delay in filing of the appeal had occasioned on account of sheer negligence and carelessness on its part as regards filing of the present appeal within the stipulated time period.
18. Also, as observed by the Hon'ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. AIR (1962) 361 (SC) that seeker of justice must come with clean hands, therefore, now when in the present appeal 23 ITA No. 323/RPR/2023 & 18 Others Gramin Sewa Sahakari Samiti Maryadit before me the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the inordinate delay of 493 days involved in preferring of the same, therefore, I decline to condone the same and, thus, without adverting to the merits of the case dismiss the captioned appeal of the assessee society as barred by limitation.
12. In view of the aforesaid decision, wherein the ratio of law laid down by in order to Apex Court in the decisions referred to (supra) have been, followed by the tribunal, in absence of any plausible explanations from the assessee towards reasons for delay which may be considered as sufficient cause, the condonation of delay has been declined.
17
ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
13. Adverting to the contentions of the Ld. AR by relying upon the decisions in the case of Collector Land Acquisition Vs. Mst. Katiji and others(SC), M/s Karnataka Forest Development Corporation Ltd. vs. ACIT (Kar HC), State of West Bengal vs. Administrator Howrah Municipality AIR 1972 SC 749 (SC), Shakuntala Devi Jain vs. Kuntal Kumhari and Ors. 1968 (9) TMI 116 (SC), The Dy. Commissioner of Income Tax, Circile-4(1), Raipur Vs. Chhattisgarh State Electricity Board 2023 (10) TMI 25 ITAT, Raipur, referred to (supra), it is incomprehensible to apply the ratio of law laid down in the aforesaid decisions wherein the assessee was allowed the condonation of delay on the ground that the deliberate carelessness, culpable negligence and malafides of the assessee have not been established / observed or presumed, as perceived by the Hon'ble Courts, thus, on account of satisfaction w.r.t. sufficient cause involved due to which the delay was occurred, the appeals of the assessee were directed to be admitted by condoning the delay. In the present case, as observed hereinabove the conduct of the assessee was throughout found to be careless, evasive, lackadaisical and non-compliant, thus, the case of the assessee altogether stands on different footing and distinguishable facts qua the reasons occasioned the delay as against the facts / reasons in the cases relied upon by the assessee, accordingly the principle laid down in the cases relied upon by the assessee cannot support or rescue the contention or explanations of the assessee 18 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg stating the reasons by which the assessee has attempted to establish the bonafide mistake, unintentional default or sufficient cause while seeking the condonation of delay in filing of the appeals.
14. In view of aforesaid observations, facts and circumstances, respectfully following the view adopted by the tribunal in ITA 323 to 341/RPR/2023 (supra), we are of the considered opinion that the assessee appellant has squarely failed to substantiate with any plausible and sufficient reasons to justify the condonation of inordinate delay of 384 days involved in filing of the present appeal. We, therefore, in our thoughtful consideration do not find any merit in the explanations and reasons submitted by the assessee towards the request seeking the condonation of delay in filling of the captioned appeal, therefore, we decline the same, and, thus, without adverting to the merits of the case dismiss the captioned appeal of the assessee, as barred by limitation.
15. In the result appeal of the assessee in ITA no, 364/RPR/2023 for assessment year 2012-13 stands dismissed, in terms of our aforesaid observations.
16. As the facts pertaining to delay involved in the captioned respective appeals filed by the assessee are also on similar lines and the reasons extended towards such delay remains the same as were 19 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg there before us in aforementioned ITA no. 364 for assessment year 2012-13, therefore, order passed therein while disposing off the said appeal shall apply mutatis mutandis on the other captioned appeals i.e., ITA Nos. 365, 366, 367 & 368/ RPR/2023. Accordingly, in these cases also, we decline to condone the inordinate delay mentioned in the chart produced hereinabove in para 5 and thus without adverting to the merits of the case dismiss the captioned appeals of the assessee, as barred by limitation.
17. In combined result all the appeals filed by the assessee in ITA No. 364 to 368/RPR/2023 are dismissed in terms of our aforesaid observations.
order pronounced in the open court on 29/01/2024.
Sd/- Sd/-
(RAVISH SOOD) (ARUN KHODPIA)
याियक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
रायपुर/Raipur; दनांक Dated 29/01/2024
Vaibhav Shrivastav
आदे श क ितिल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant-
2. यथ / The Respondent-
3. आयकर आयु (अपील) / The CIT(A),
4. आयकर आयु / CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 20 ITA Nos. 364, 365,366,367 & 368/RPR/2023 Block Education Officer, Durg
6. गाड फाईल / Guard file.
// स या पत ित True copy // आदे शानुसार/ BY ORDER, (Assistant Registrar) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur