Income Tax Appellate Tribunal - Jaipur
Shri Deepak Enterprises, Kishangarh vs Deputy Commissioner Of Income Tax, Cpc ... on 8 November, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
SMC
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BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER
vk;dj vihy la-@ITA No. 1159/JP/2018
fu/kZkj.k o"kZ@Assessment Year : 2013-14.
M/s. Deepak Enterprises, cuke The DCIT, CPC (TDS)
Laxmi Narayan Vihar Colony, Vs. Ghaziabad.
Madanganj-Kishangarh.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AAIFD 4189 M
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri O.P. Bhateja (ITP)
jktLo dh vksj ls@ Revenue by: Shri A.S. Nehra (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 08.11.2018.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 08/11/2018.
vkns'k@ ORDER
This appeal by the assessee is directed against the order of the ld. CIT (A), Ajmer dated 16.08.2018 arising from the order passed by the AO under section 200A read with section 234E of the IT Act in respect of 4th quarter of assessment year 2013-14. The assessee has raised the grounds of appeal as under :-
" 1. On facts and in the circumstances of the case the ld. CIT (A), Ajmer has erred on facts and in law in not admitting the appeal of the appellant against late fee imposed u/s 234E of the I.T. Act under clause (c) of sub section (1) of the section 200A of the I.T. Act.
2. The ld. AO has erred on facts and in law in levying late filing fee u/s 234E of the I.T. Act.
3. Appellant keeps its right reserve to add, alter, amend or delete in grounds of appeal before or at the time of hearing of appeal."2 ITA No. 1159/JP/2018
M/s. Deepak Enterprises, Kishangarh.
2. We have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. The appeal of the assessee was dismissed by the ld. CIT (A) in limine as not maintainable being barred by limitation and the impugned order was passed ex parte as none has appeared on behalf of the assessee. The ld. A/R of the assessee has submitted that the ld. CIT (A) has not given the assessee an opportunity after the report dated 14.08.2018 of the AO was considered for the purpose of limitation for filing the appeal before the ld. CIT (A). He has thus contended that the ld. CIT (A) has accepted the notice of demand allegedly sent by the AO through email to the Chartered Accountant of the assessee on 23.12.2013 instead of date of notice received by the assessee. Hence, the ld. A/R submitted that the ld. CIT (A) has passed the impugned order rejecting the appeal without giving an appropriate opportunity to the assessee to explain the delay, if any, in filing this appeal. In support of his contention, he has relied upon the decision of this Tribunal dated 22nd May, 2018 in case of AEN (O&M), Ajmer Vidhyut Vitaran Nigam Ltd. vs. ACIT, CPC (TDS) in ITA Nos. 405 & 409/JP/2018 as well as decisions of the Tribunal in case of Mohan Lal Vyas vs. DCIT CPC (TDS) in ITA No. 830/JP/2018 dated 19.09.2018 and in case of Trimurty Buildcon P. Ltd. vs. DCIT CPC (TDS) in ITA Nos. 18, 19 & 20/JP/2017 dated 29.10.2018.
3. On the other hand, the ld. D/R has submitted that the ld. CIT (A) has given number of opportunities to the assessee as stated in the impugned order and despite the sufficient opportunities given by the ld. CIT (A), none appeared on behalf of the assessee before the ld. CIT (A). Therefore, the assessee was not interested in pursuing the appeal and further once the demand notice was sent by 3 ITA No. 1159/JP/2018 M/s. Deepak Enterprises, Kishangarh.
the AO through email as provided by the assessee, then the limitation will reckon from the said date of email and not from any subsequent notice, if any, received by the assessee. He has relied upon the impugned order of the ld. CIT (A).
4. Having considered the rival submissions as well as the relevant material on record, we note that the ld. CIT (A) has decided all these three appeals of the assessee on identical reasoning in para 3 & 4 as under :-
" 3.0. The AO in his report dated 14.08.2018 has reported as under:-
" vkids dk;kZy; ds i=kad Øekad CIT(A)AJM/2018-19/2851 fnukad 26-07-2018 ds }kjk fu/kkZjfr Deepak Enterprises,- TAN-JDHD04747B ds }kjk vkids ;gkWa dh x;h vihy la[;k 378@2015&16 dj fu/kkZj.k o"kZ 2013-14@26Q 4th ds lac/a k esa foHkkx }kjk fudkyh x;h cdk;k ekax dh lwpuk /kkjk 200A ds rgr Hkstus dk lcwr ekaxk x;k gS bl laca/k esa ys[k gS fd foHkkxh; jsdkWMZ ns[kus ij ik;k x;k fd fu/kkZfjrh dks bl ekax dh lwpuk fnukad 23.12.2013 dks fu/kkZfjrh }kjk fooj.kh esa nh x;h bZ esy vkbZ Mh [email protected] nh x;h Fkh ftlds fy;s flLVe ls fudkyh x;h lwpuk /kkjk 200A o bldks lfoZl djkus ds fooj.k layXu 'khV esa miyC/k gSA iz"s k.k jftLVj dh Nk;kizrh vkids voyksdukFkZ Hkstk tk jgk gSA vr% ekeys esa fu/kkZfjrh ds le; ij lfoZl djk nh x;h Fkh bl lac/a k esa fjiksZV vkidks izLrqr gSA^^ 4.0. Thus, from the report of the AO, it is clear that the notice of demand was sent to the appellant on 23.12.2013 on the email 4 ITA No. 1159/JP/2018 M/s. Deepak Enterprises, Kishangarh.
[email protected] given by the appellant. As per Section 249(2), the appeal has to be presented within 30 days of date of service of notice of demand. The appellant has not filed the appeal within the period specified u/s 249(2). There is an inordinate delay in filing the appeal. I am of the considered view that the appellant did not have any sufficient cause for not presenting the appeal within the period specified u/s 249(2). Hence, the appeal is dismissed as "not admitted".
Thus it is clear that after the report of the AO dated 14.08.2018, no hearing was fixed by the ld. CIT (A) and the impugned order was passed on 16.08.2018. Therefore, the ld. CIT (A) has not given an effective opportunity of hearing to the assessee to explain the delay in filing the appeal, if any, before the ld. CIT (A). This Tribunal in case of AEN (O&M) Ajmer Vidhyut Vitaran Nigam Ltd. vs. ACIT (supra) vide order dated 22nd May, 2018 has considered an identical issue in para 7 as under
:-
"7. Having considered the rival submissions as well as the relevant material on record, we note that the ld. CIT (A) has dismissed the appeals of the assessee in limini by recording the finding in para 4 as under :-
" 4. Thus, from the report of the AO, it is clear that the notice of demand was sent to the appellant on 20.08.2015 on the email [email protected] given by the appellant. As per Section 249(2), the appeal has to be presented within 30 days of date of service of notice of demand. The appellant has not filed the appeal within the period specified u/s 249(2). There is 5 ITA No. 1159/JP/2018 M/s. Deepak Enterprises, Kishangarh.
an inordinate delay in filing the appeal. I am of the considered view that the appellant did not have any sufficient cause for not presenting the appeal within the period specified u/s 249(2). Hence, the appeal is dismissed as "not admitted"."
Thus the ld. CIT (A) has taken into consideration the alleged service of notice of demand through e-mail. However, other than the alleged e- mail, no other record was referred for service of notice to the assessee. Even otherwise, the assessee was not heard on the point of explanation of delay, if any, in filing the appeals before the ld. CIT (A). Therefore, we are of the considered opinion that the ld. CIT (A) has dismissed the appeals being barred by limitation even without giving a specific opportunity to the assessee to explain the delay, if any. The assessee has not claimed any delay in filing the appeals before the ld. CIT (A) whereas the ld. CIT (A) has considered the appeals filed by the assessee as barred by limitation. Accordingly, in such a situation, a defective memo was required to be issued to the assessee or the assessee ought to have been given an effective opportunity of hearing on the point of delay. Accordingly, in the facts and circumstances of the case and in the interest of justice, we set aside these two appeals to the record of the ld. CIT (A) for giving one more opportunity to the assessee to present its case and also to explain the cause of delay, if any, in filing the appeals. After considering the explanation of the assessee, the ld. CIT (A) shall decide the issue of condonation of delay and thereafter the appeals on merit, if need arises."
Accordingly, in the facts and circumstances of the case and following the earlier order of the Tribunal, we set aside the appeal to the record of the ld. CIT (A) for giving one more opportunity to the assessee to present its case and also to explain 6 ITA No. 1159/JP/2018 M/s. Deepak Enterprises, Kishangarh.
the cause of delay, if any, in filing the appeal. After considering the explanation to be furnished by the assessee, the ld. CIT (A) shall decide the issue of condonation of delay as well as the appeal on merit.
5. In the result, appeal of the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 08/11/2018.
Sd/-
(fot; iky jkWo ½
(VIJAY PAL RAO)
U;kf;d lnL;@Judicial Member
Jaipur
Dated:- 08/11/2018.
Das/
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. The Appellant- M/s. Deepak Enterprises, Madanganj Kishangarh.
2. The Respondent - The DCIT, CPC (TDS), Ghaziabad.
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File (ITA No. 1159/JP/2018) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar 7 ITA No. 1159/JP/2018 M/s. Deepak Enterprises, Kishangarh.