Income Tax Appellate Tribunal - Agra
Aara Agro Pvt. Ltd., Agra vs Dy.Cit., Circle-2(1)(1), Agra on 23 November, 2021
TRIBUNAL
IN THE INCOME TAX APPELLATE
AGRA BENCH: AGRA
KUMAR, JUDICIAL MEMBER
BEFORE SHRI LALIET
AND
MEMBER
DR. MITHA LAL MEENA, ACCOUNTANT
LT.ANo.54/AGR/2021
(ASSESSMENTYEAR: 2018-19)
Vs. CIT Circle-2 (1)(1)
Agra Agro Private Limited Agra U.P.
Anjana Cinema, 3/2 D.M.G. Road
Agra U.P. 282007
PAN: AAGCA8595F
(Assessee) (Revenue)
Sh. K.K. Jain, Adv.
Assessee by
Revenue by | WaseemArshad, Sr. DR
Date of Hearing_ |14.10.2021
Date of Pronouncement 23.11.2021
ORDER
PerBench:
Order u/s 143(1) of the Income This appeal is filed against the Tax Act, 1961 (herewinafter referred as 'the Act') dated 19.05.2019, assed by the DCIT, CPC, Bengaluru.
The appellant filed return of income for the assessment year subsequently revised on 30-09-2018 2018-19 on 2809-2018 which was LT.A No.54/AGR/2021 2 26,60,05,400/- under the normal declaringg total income of Rs.
provisions of the Act and book profit of Rs. 35,05,03,102/- under the appellant hassold fixed provisions of section 115JB. During the year asset on 07-03-2018. While processing the ITR the CPC Bengaluru charged to Rs. 7,66,824/- and u/s 234C amounting to Rs. interest u/s 234B amounting has 29,74,897/-. Aggrieved with the charging of interest u/s 234C, the appellant filed this appeal.
2.2 The appeal was e-filed in Form No-35 on 04-03-2020 accompanied by statement of facts, grounds of appeal and details of payment of appeal fee.
2.3 In the statement of facts, it has been submitted that "The appellant company had no business. However, during the year capital asset has been sold in the month of March 2018 on which long term capital gains arise. The liability of advance tax arose only after sale of property in accordance with the provisions of section 207 to 211. The e return was filed showing normal income of rupees 266005400 and income under section 115JB of rupees 350503 102. The intimation under section 143(1) was received on 3rd June 2019 determining demand of rupees 37,41,720 which comprises interest charged under section 234C amounting to rupees 29,74,897 on account of deferment of payment of advance tax and 234B of rupees 7,66,824. The appellant had paid the interest charged under section 234B. The interest 234C has also been paid at rupees 88,140 for deferment of last installment of advance tax. The appellant moved rectification request before CPC for modifying interest charged under section 234C on 9th June 2019. The said rectification LT.A No. 54/AGR/2021 3 request was rejected by CPC vide order dated 28th June 2019 but sent on Email on 21st February 2020 which could be seen on 2nd March 2020. On receipt of rectification order, it is noticed that CPC has repeated the liabilityas determined in the intimation under section 143(1). Section 143(1) authorized to make adjustment to the returned income in certain cireumstances enumerate therein. The interest under section 234C is to be charged only for the month of March as the capital gains arise in the month of March duly reported in ITR.
The present appeal is delayed by 275 days for which condonation application is being separately moved."
under-
2.4 2.4 The appellant had taken three grounds in the appeal which are as interest under section 234C for first, () Because the CPC has erred in charging second and third quarter as there was no liability to pay advance tax as the capital gains arise in the month of March 2018.
the sale of asset in the month of March 2018
(i) Because the capital gains arise on the interest under section 234C is to be charged only for the month of March as provisions of section 207 to 211. per the Because the appellant craves leave to add, modified, subtract any grounds
(ii) of appeal at the time hearing.
has submitted the condonation of delay in the 2.5 In appeal memo appellant column no 15, which is reproduced here under:
4 LT.A No. 54/AGR/2021 GAINS IN
"THE APPELLANT EARNED INCOME FROM CAPITAL
ADVANCE TAX LIABILITY
AROSE
MARCH 2018 THEREFORE THE MAY 2019 WAS PROCESSED ON 17 ONLY IN MARCH. THE RETURN APPELLANT INSTEAD OF CHARGING INTEREST US 234C.THE RECTIFICATION REQUEST AT FILING APPEAL PREFER TO FILE RECTIFICATION ORDER RECEIVED ON CPC ON 9 JUNE 2019. THE IS 2/3/2020. THE APPEAL FILED EMAIL ON 21 FEB 2020 SEEN ON SEPERATE APPLICATION IS DELAYED BY 275 DAYS FOR WHICH BEING FILED."
the appellant submitted the written
3. During the appellate proceedings under:
submission, produced here for which separate application for "The appeal filed is delayed by 275 days on 5/3/2020 (copy enclosed) and in condonation of delay has been filed enumerated therein, the delay may view of the facts and circumstances entertained. The sequence of events in the please be condoned and appeal be matter is summarized below: -
Date of service Event | Date of order/application 03-06-2019 Intimation /s 143(1) 17-05-2019 09-06-2019 Rectified intimation not Rectification request at CPC received till 10-02-2020 10-02-2020 Rectified order dated 28-06- Grievance for not receiving 5 I.T.A No, 54/AGR/2021 2019 sent on email on 21- seen on 02-03-
rectified 02-2020
intimation 2020
Appeal filec 04-03-2020
on 02-03-2020
about passing of
In brief the appellant after having knowledge
email on 21-02-2020 immediately
28-06-2019 and sent on
order u/s 154 on
intimation dated 17-05-2019 thereafter without any loss of time, against the on 04-03-2020 which clearly served on 03-062019 has filed the present appeal The delay in service of show the due diligence of the appellant in filing appeal.
identical facts Hon'ble not attributable to the appellant. On the rectified order is has Court in Subhash Malik vs CIT [2010) 3251 TR 243 (AlI) Allahabad High order is placed in paper book.
condoned the delay in filing appeal. Copy of
with malafide
circumstances the delay of 275 days no
On the facts and
not deliberate as a dilatorytactic. The of delay and was intention for the cause the delay is not condoned. Your good self cause of justice will suffer in case under sub section inherent powers to condone the delay has been vested with sufficient and Act where delay has occurred due to of the (3) of section 249 occurred due to sufficient the matter the delay is reasonable cause. In present be explained herein before which may please c a u s e as and reasonable condone."
143(1) dated 17-05-
it is seen that the Order /s
4. On perusal of Form-35, filed on
on 03-06-2019, while the appeal was
served upon the
assessee
2019 was
6
L.T.A No. 54/AGR/2021
provided for filing of the
04-032020, which is beyond the statutory time limit
As per Section 249(2%c) the appeal shall be presented within 30 days of
appeal.
date which the intimation of the order sought to be appealed
the following on
against is served.
relevant provision of section 249 of the Income-tax
5. For the sake of clarity
here
Act,1961 in respect of appeal to the CIT(A) and limitation, is reproduced
under
shall be in the prescribed form and shall
249. (1) Every appeal under this Chapter and shall, in case of an appeal made to the be verified in the prescribed manner Commissioner (Appeals) on or day of October, 1998, irrespective of after the 1st assessment proceedings relating thereto be the date of initiation of the fee of,- where the total income of the assessee as computed accompanied by a to which the appeal relates is one hundred by the Assessing Officer in the case thousand rupees or less, two hundred fifty rupees;
where the total income of the assessee, computed as aforesaid, in the case
(iv) the relates is than one hundred thousand rupees but not to which appeal more more than two hundred thousand rupees, five hundred rupees;
L.T.A No. 54/AGR/2021 7aforesaid, in the case to (where the total income of the assessee, computed as which the appeal relates is more than two hundred thousand rupees. one thousand rupees
(vi)where the subject matter of an appeal is not covered under clauses ().
and (ii), two hundred fifty rupees.
that is (2) The appeal shall be presented within thirty days of the following date, to say,
(a)where the appeal is under section 248, the date of payment of the tax, or
(b)where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty:
Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, on
(c) in any other case, the date on which intimation of the order sought to be appealed against is served.
(2A) Notwithstanding anything contained in sub-section (2), where an order has been made under section 201 on or after the Ist day of October, 1998 but before the lst day of June, 2000 and the assessee in default has not presented any appeal within the time specified in that sub-section, he may present such appeal before the 1st day of July, 2000.8 L.TA No. 54/AGR/2021
of the The Commissioner (Appeals) may admit an appeal after the expiration (3) sufficient cause for said period if he is satisfied that the appellant had notpresenting it within that period.
of admitted unless at the time of filing (4) No appeal under this Chapter shall be the appeal-
by the assessee, the assessee has paid the
where return has been filed
(a) a
tax due on the income returned by him; or
the the assessee has paid an
(b) where no return has been filed by assessee,
to the amount of advance tax which was payable by him:
amount equal application made falling under clause (b) and] on an Provided that, in a case the Commissioner (Appeals) may, for any by the appellant in this behalf, and sufficient reason to be recorded in writing, exempt him from the good of that clause."
operation of the provisions the Order u/s
6. In the instant case, the appellant filed the appeal against The appeal was served upon him on 03-06-2019. 143(1) of the Act, which was 04-07-2019. However, it was belatedly required to be filed within 30 days i.e. by 04-032020. It is seen from columns 14 & 15 of the appeal filed and filed on Act.
submission made that it is due to late receiving of order u/s 154 ofthe Further, the provisions 249(3) lay down that an appeal may of Section 7.1 said period, if the CIT(A) is satisfied be admitted after the expiration of the 9 LT.A No. 54/AGR/2021| that the appellant had sufficient cause for not presenting the appeal within that appeal against order u/s the appellant should have filed the period. In this case of order under reference. 143(1) by 03-072019 within 30 thirty days of receipt petition has filed rectification against the order u/s 143(1) and if If appellant then rectification order has been received then if any appeal was required said the have been filed against the order u/s 154 of the Act and not against should sufficient cause for of the Act. As such it cannot be said as order u/s 143(1) admitted fact that the in of appeal. Under the circumstances it is delay filling to the did not comply with the provisions of Sec. 249 pertaining appellant 0403-2020 is held to be procedure for filing of an appeal, the appeal filed on reliance in the case of decision not maintainable. The appellant has placed his 325 Subhash Malik V/s CIT (2010) of honorable High Court of Allahabad in per facts of the present case not the same as ITR 347. The facts of the c a s e are to take up the matter before in the said case, the counsel has advised being rectified u/s 154 of the Act. However, in this CIT( Appeal) to get the order of this case law is not case there is no such facts. Therefore, the ratio applicable to the present case.
Vs Assistant Commissioner of In the of Senior Bhosale Estate (HUF) case in filing Court allowed the condonation of delay Income Tax, the Hon'ble Apex in pronouncing the principles behind condoning the delay the concerned appeal 10 LT.A No.54/AGR/2021 section 5 of the Limitation Act, filing appeals before the Courts by applying Court is of the view that the law of limitation is 1963. The Hon'ble Apex The idea behind the law of limitation is not destroy founded on public policy.
dilatory tactics
not resort to
but to ensure that they do
the rights of the parties of limitation is to keep without delay. The objection of the law and seek remedy not restrict limited time but does prescribed with in a alive the legal remedy certain genuine courts to condone the delay in the interest of justice. There are for the condonation of delay in cases which the courts may consider grounds laid down under the where Appeals are filed after the expiry of period as where the appeal was 1963. In the case of condonation of delay limitation Act, empowered to condone the the limitation of period, the courts are filed beyond file the inability to his claim of the Appellant can prove delay, provided that must be able to demonstrate that within the prescribed period. Litigant appeal in the obstructs his action to file appeal there was "Sufficient Cause" which "Sufficient held that the expression time limit. Courts have also prescribed consideration for the sake of justice. Thus, the Cause" shall receive liberal on the facts of the case.
condonation is not automatic but is based upon of delay have power to examine the Courts while condoning delays in filing appeals Cause" may due to "Sufficient and after ascertain the facts if delay was case condone the delay.
11 I.T.A No.54/AGR/2021filed is not in
6. Considering the above discussion and facts, the appeal of the Act, and there is no conformity with the provisions of Sec 249(2) of the appeal, the sufficient cause for condonation of the delay in filing the appeal filed by the present is dismissed as not maintainable. Thus, appeal dismissed as not maintainable. appellant is SYNOPSIS Brief facts business since last
1. The 'appellant is a Private Limited Company and had no under consideration immovable property bearing severalyears. During the year Mauja Lashkarpur, M.G. Road, Agra along with number 3/2D Khasra No.513 assets was sold through Sale Deed(Page No.82 to 98) Registered on depreciable consideration of Rs.35,25,00,000/-. The breakup of 7.3.2018 (A.Y 2018-19) for a sale consideration is as under:-
Land Building Plant & Total Nature of asset Machinery sold Non Depreciable 31,17,40,000 31,17,40,000 Depreciable Assets 3,97,60,000 10,00,000 4,07,60,000 Total B1,17,40,000 3,97,60,000 10,00,000 35,25,00,000| 12 I.T.A No.54/AGR/2021 On Condonation of Delay (Ground No.1) considered expedient to invite the kind 2 For the disposal of Ground No.1, it is which are tabulated of events attention ofthe Hon'ble Bench to the sequence below of PBP Date Date Event service 30.09.2018| 18-51 Return of Income filed under 17.05.2019| 03.06.2019 by64-68 The said Return stood processed Post section 143(1) of the Act and'Original' Intimation issued 09.06.2019 69 Upon receipt of Original Intimation at CPC for Rectification Application filed interestexcessively/wrongly rectifying charged under section 234C of the Act 70 Since unheard. Grievance filed at CPC for not receiving 10.02.2020| Rectified Intimation' CPC alleges having issued 'Revised 28.06.2019 Intimation. However, no such 'Revised Intimation' was| In response to the Grievance filed at CPC, 21.02.2020| 21.02.2020 71- 5
Rectified Intimation senton registerede mail for the first time to the appellant. Rectified Intimation seen on e-mail giving rise to 02.03.2020| present appeal Assessee being unsuccessful in 04.03.2020 Rectification proceedings as conveyed vide Application for condonation of delay filed beforel05.03.2020 11- 4 CIT(A) 13 LT.A No. 54/AGR/2021 kind tabulated above your good self may be From the sequence of events as
3. 'Intimation' on 03.06.2019, toappreciate that the appellant. after receipt of 154 of the 'Act' on under section acted promptly filed application long also raised response from the CPC for 09.06.2019 and hearing no was informed in response to which the 'appellant' on 10.02.2020 grievance 'Rectified Intimation' on 28.06.2019.
that CPC had already raised 'never so-called 'Rectified Intimation affirms that the 4. 'Appellant' to this any date on near the 'appellant' on 28.06.2019 or reached/served on sent on e-mail on Intimation' for thefirst time was date. The 'Rectified on 02.03.2020. Therefore, as and which was seen by the 'appellant' 21.02.2020
either on 21.02.2020 or on 02.03.2020 against such the cause of grievance arose on 04.03.2020 well within 30 days'.
which Appeal was filed
was never served on the date of
5. 'Appellant' affirms that 'Revised Intimation' such date either by Post or by e-mail. 'Appellant' 28.06.2019 or on any date near to furnishes herewith Affidavit of the Managing Director of the 'Appellant' Company in order to establish its case.
of 'appellant mistake pertains to excess/wrong
. That since in the case
Interest the 'appellant' upon being so advised, was pursuing
charging of
under the Income Tax Act by virtue of Section 154
alternate remedy provided 09.06.2019 to 02.03.2020 of the Act' therefore, complete period starting from deserves to be condoned as the 'appellant' was pursuing alternate remedy for deletion of disputed demand.
14 I.TANo. 54/AGR/202128.06.2019 to in service of 'Rectified Intimation' from 7 The alleged delay 'Rectified as no such 02.03.2020 cannot be attributed to the 'appellant' e-mail.
the appellant' either by Post or by Intimation'ever served upon got dilatory tactic in filing there was no mala fide or deliberate delay as a Thus, the appeal delayed by 275 days. after the the CIT(A) may admit an appeal
8. As per section 249(3), the appellant had if he is satisfied that expiration of prescribed period period. The power of it within that sufficient c a u s e for not presenting of to advance the cause liberally so as condonation is expected to be exercised justice. condonation reliance on various decisions for
9. The 'appellant' had placed not discussed much less NFAC but the same were of delay before CIT(A) Allahabad discussed the Judgment of Hon'ble distinguished. 'NFAC' has only No.60 to Court in Subhash Malik vs CIT [2010] 325 ITR 243 (All) (Page High reliance on hyper and has distinguished it too on flimsy ground,placing
65) No.8 mentioned in Para 7.1 of the impugned order (Page technical consideration of appeal memo) as under:
case are not the same as per facts of the present The facts of the the matter the said case, the counsel has advised to take up case being Act. However, order rectified u/s 154 of the before CIT(Appeal) to get the case law is there are no such facts. Therefore, the ratio of this in this case not applicable to the present case."15
LT.A No. 54/AGR/2021| the case were that the In the case of Subhash Malik (supra) the facts of
10. order dated 5- section 144 was passed by the ITO by an Assessment orderunder Commissioner on 08.04.2002 before the 3-2002. The assessee filed an appeal (Appeals) by an was dismissed by the Commissioner (Appeals). The said appeal on served upon the assessee 25.09.2002 and the said order was order dated order the rectification of the under section 154 for 18.11.2002. An application the 23.12.2002 but the same was rejected by filed o n dated 25.09.2002 w a s order dated 20.10.2003. The said an order dated Commissioner (Appeals) by thereafter the assessee on 25.11.2003, the assessee 20.10.2003 was served on 279 days before the Tribunal on 28.11.2003 after a delay of filed an appeal Commissioner (Appeals). The 25.09.2002 passed by the against the order dated Hon'ble limitation. The dismissed by the Tribunal as barred by said appeal was also order passed by the ITAT holding that "/t was High Court reversed the order under section 154 was filed against the noteworthy that an application no reason to disbelieve the time. There was dated 25.09.2002 well within that he as advised by his counsel to file an contention of the assessee.
the rectification of the order dated
application under section 154 for
caused the delay in
25.09.2002 and the pendency of the said application had
Tribunal. ' The Hon'ble High Court further held
filing the appeal before the
the Apex Court that in matter of
that" It has been consistently held by
liberal and pragmatic view should be
taken. The Apex
condonation of delay a
Court in Ramji Dass v. Mohan Singh ARC 1978 Page 496 has held thatas far as
discretion should be exercised in favour of the hearing and not possible Court's held "Thus, while deciding to shut out hearing" and while allowing the appeal 16 LTANo. 54/AGR/2021 adopted." The to be application justice oriented approach is required such an referred and Court while arriving at the above view Hon'ble Jurisdictional High Centre v. CIT delivered in the case of 'Bharat Auto relied upon the Judgement with the matter too while dealing in which (2005) 149 Taxman 228 (All.) the delay in filing the Hon'ble High Court held that where similar situation the due to was caused Commissioner of Income-tax (Appeals) before the appeal of the Act the delay is application under section 154 the pendency of the condonable.
summarized below:-
Malik's case are
11. The facts of Subhash Date Event 05.03.2002 u/s 143(3) Order passed 08.04.2002 CIT(A) Appeal filed before 25.09.2002 CIT(A) Appeal dismissed by 18.11.2002 Service of order 23.12.2002 filed before CIT(A) Application u/s 154 20.10.2003 Application rejected by CIT(A) 25.11.2003 Service of order u/s 154 of CIT(A) 28.11.2003 against the order dated Appeal filed before ITAT 18/11/2002 with delay of 279 days 08.07.2005 ITAT Appeal dismissed by 10.07.2009 order dated Delay condoned by Hon'ble High Court vide the issue are relevant and may please be The following decisions on considered:-
LT.A No. 54/AGR/2021 17ITR 471(SC)Collecotr, Land Acquisition vsMst.Qatiji& Other (page 12.1 167 No.105 to 108 of paper book) technical consideration when substantial justice and It has been held that deserves to be each other, the cause of substantial justice are pitted against side cannot claim to have vested right in injustice preferred, the other that deliberate delay. There is no presumption being done because of non or on a or on account of culpable negligence isoccasioned deliberately delay does not stand to benefit by resorting to delay, in fact malafide. The litigation he is on serious risk.
(Supreme Court) CIVIL APPEAL NOS. 12.2Improvement Trust vs. Uijaqar Singh No.109 to 122 of paper book) 2395 of 2008 dated 26.06.2010 (Page should be condoned. Matters should be Unless mala fides are writ large. delay technicalities.
disposed of on merits and not No.123 12.3 431 ITR 148 (Del) HL Malhotra& Co. Pvt. Ltd. Vs DCIT(page to 128 of paper book) (Relevant Para 16) It was held that in absence of anything male fide or deliberate delay as a the Court should normally condone the delay as the intent is dilatory tactic, following the Hon'ble Supreme Court always to promote substantial justice decisions in the case of Collector, Land Acquisition, Anantnag&Anr. VsMst.
Katiji and others (1987) 2 SCC 107 and N. Balakrishnan Vs M. Krishnamurthy 1998 (7) SCC 123.
18 L.T.A No.54/AGR/2021order dated 12.4 ITA No.2494/Mum/2018 Shri NibeshJabarmalChandanivs 1TO No.l129 to 135 of paper book) (Para 6) 28.11.2018 (Page appellate to be adopted by the "Nevertheless, a liberal approach has r e a s o n s on the part of the has occurred for bona fide authorities where delay matters concerning the filing filing the appeals. In a s s e s s e e or the Revenue in the delay a refusal to condone exercise of the statutory right, of appeals, in threshold, which thrown out at the in a meritorious matter being can result account of its on not of justice. The judiciary is respected leads to miscarriage because it is capable of technical grounds but on power to legalize injustice and is expected to do so."
removing injustice NFAC circumstances of the case the CIT(A) overall In view of the facts and which may delay of 275 days in refusing to condone the has grossly erred merits.
may kindly
be heard on
be condoned and appellant kindly Submissions onmerits (Ground No.2, 3 and4) section excessive interest under These grounds relates to the charging of
13. 234C of the Act.
declaring income of Rs.26,60,05
company had
filed e-return
The appellant
Act which inter alia
included only
400/- under normal provisions of the
sale of land and
capital gains viz a viz long term capital gains worked out on
sale of depreciable assets. As the book
short term capital gains worked out on
calculated under the
than normal income, the tax was
profit was more
LT.A No. 54/AGR/2021 19
provisions of section 115JB on the book profit of Rs.35,05,03,102/-which
profit sale of fixed assets. Since the entire income
inter alia included on
tax
accrued on 07.03.2018, therefore, there was no liability to pay advance
arisen 07.03.2018
before 07.03.2018. The entire profit on sale of assets on
the appellant so as to enable it to estimate
could not have been foreseen by
anterior date.
of payment of advance tax on an
such income for the purpose 15.12.2017. The appellant was thus not 15.06.2017 15.09.2017 or may it be or 15.09.2017 and 15.12.2017 advance tax on or before 15.6.2017, liable to pay point of time and such event at the relevant as the income was not estimable installments. The after the due dates of first, second and third has taken place first, second and third quarter is patently illegal and is interest charged for the month of March in unsustainable. The interest could be charged only for the contained in statute vide section 207 to view of the unambiguous provisions Act.
211 of the tax payable only in the last installment as per the normal 13.1 The advance Rs.6.31 80.751/- against which tax paid by way of provisions of the Act at tax at Rs.6,59,88,880/-. Thus the tax paid in advance was TDS and advance there is short much more than payable as per normal provisions. However, fall of advance tax as per the provisions of section 115JB. The tax payable as per the provisions of section 115JB worked out at Rs.7,48,02,970/- and the worked out at Rs.
short fall of advance tax for the month of March 88,14,082/- on which interest u/s 234C is leviable at Rs.88,140/- only as against Rs.29,74,897/- charged while issuing intimation u/s 143(1).Thus the order passed by CIT(A) NFAC resulted into substantial miscarriage of justice, 20 LT.A No. 54/AGR/2021 has been saddled with prejudiced the cause of justice and the appellant greatly 234C of the Act.
the excessive liability of interest u/s
234C had come up
interest under section issue of charging 13.2. The similar of Sidhmicro Mumbai Bench in the case consideration before the Hon'ble for No.136 to 142) No.710/Mum/2018) (Page Private Ltd. vs ACIT (ITA Equities consideration of the Hon'ble after due dated 27/3/2019 wherein the order of interest cannot be saddled with the liability matter has held that the a s s e s s e e directed to work out the interest The AO w a s of income/gain.
prior to earning gain only. The fact of date of accrual of capital 234C from the under section view was adopted in the c a s e of ACIT identical. Similar case is the appellant's No.147 & 148) Ltd. [56 ITD 164](Hyd.) (Page Jindal Irrigation Systems duty, vs defaulted for a could not be held that assessee an wherein it has been Bench also considered levy of impossible to be performed. The which was where on the relevant dates assessee the Act in a situation interest u/s 234C of similar view receipt of such income. Again a not in a position to estimate was of Bench of Tribunal in the case has been taken by the Hon'ble Chennai (Page No.143 to 146) and Ltd. [103 TTJ 122](Chennai) Express Newspaper Advanivs ACIT (ITA the of Kumari Kumar Hon'ble Mumbai Bench in case Hon'ble No.148 to 154) order dated 13/7/2016.The No.7661/Mum/2013) (Page Court in CIT vs Smt.Premlata Jalani [264 ITR 744] (Page Rajasthan High in respect of No.155 to 167) has held that the interest payable u/s 234C only 21 LT.A No. 54/AGR/2021 the entire amount of of capital gains and not on installm nt due after accrual tax.
excessively and provisions of law the interest charged facts On consideration of the be direct the AO to modify it. modified and may please 234C needs to be u/s is not entitled for any had submitted that the assessee the
2. The Ld.DR for revenue within the the assessee failed to file the appeal from the Bench as indulgence therefore the CIT(A) was right in as provided by the Act and statutory period merit.
them grounds on
without adjudicate
disposing of the appeal the contention of the parties and perused considered the rival
3. We have at bar during the the judgments cited material available on record, including by both the parties.
course of hearing
that the assessee had
argued before us
4. As is clear from
the undisputed fact
the assessing officer for
section 154 before
under
preferred application was communicated to the assessee however no order rectification of mistake reminder from the receipt of the within the statutory. The respondent on 154 to the had provided the copy of the order passed in section assessee, only order under section 154, the assessee assessee. Immediately after receiving the consider the the CIT(A), had failed to preferred the appeal before the CIT(A), and had for delay in pursuing the appeal explanation given by the a s s e s s e e 22 LT.A No. 54/AGR2021 ground that the appeal was the summarily rejected the appeal of the assessee on not filed within the statutory period as provided by the act.
a s s e s s e e on 17 issued to the under section 143(1) was
5. As per record intimation under section 154 for thereafter the application was filed May 2019 and a s s e s s e e was not redressed by rectification on 9 June 2019., The grievance of the was constrained to file an officer and therefore the assessee the assessing had informed to on 10" Feb 2020, in response thereto the respondent application application had already been disposed of on the assessee that the rectification under section 154 was 28th June 2019 and the said order of rejecting application communication on 21 February sent to Ld.AR for the assessee, through email 2020.
6. Immediately thereafter the assessee preferred the appeal before the CIT(A) on 4th March, 2020. Ordinarily the appeal is required to be filed by the assessee efore the CIT(A) within the. of 30 days from the date of receipt of the order/intimation in the present court case it was 17" May 2019.
7. In our considered opinion the delay in filing the appeal before the alleged impression that the rectification application is pending adjudication before the assessing officer. At this stage it would be difficult for us to find out whether the communication dated 28 June 2019, was sent by the assessing officer or the CPC to the assessee or to his AR or not. In any case, the purpose of tax adjudication is to collect due and legal taxes from the assessee and for those purposes, the liberal approach is required to be followed by the authorities below.
23IT.A No. 54/AGR2021 following the assessee was required to be vigilant and diligent in Undoubtedly, cannot be said the statutory authority, in the present case it the remedies before the purpose of in prosecuting is right. Moreover was negligent they the a s s e s s e e citing the to get the things set right by before the CIT(A) was filing the appeal if the have been done by the assessing officer s a m e could correct provision, the filed by the considered the application of section 154 had assessing officer assessee.
the CIT(A).
officer as well as by Needful was not done by the assessing
8. delay in we are of the considered opinion that the
9. In the light of the above condoned and we accordingly the appeal before the CIT(A) is required to be filing condone the same.
and
10. As we have condoned the delay in filing the appeal before the CIT(A) merit, it would be are in the interest of there was no adjudication by the CIT(A) on CIT(A) with the direction to justice that appeal is remanded back to the file of the to the assessee decide the appeal on merit after affording opportunity of hearing and granting the opportunity to file any document as deemed appropriate in accordance with law and rules framed for the said purpose. We made it clear that we have not expressed any opinion on meritof the case and whatever expression used in order is only with a view to bring on record the correct facts which were necessary for adjudicating the condonation of delay.
LT.ANo. 54/AGR/2021statistical purposes. a l l o w e d for Hence the appeal is (LALIETKUMAR) J U D I C I A L M E M B E R LAI. VEENA) Dr. MITHA ACCOUNTANT MEMBER Appellant Respondent CIT DR. iA Order True Copy By