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TMI Blog2018 (12) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... st the order of the Commissioner of Income Tax (Appeals) XX, Ahmedabad[CIT(A) in short] vide appeal no.CIT(A)-XX/46/13-14 dated 26.06.2014 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961(here-in-after referred to as the Act ) dated 28.12.2010 relevant to Assessment Year (AY) 2008-09. 2. The grounds of appeal raised by the assessee are as under:- 1. The CIT(Appeals) erred in not condoning the delay in filing of appeal and in the process, did not appreciate the reasons given by the Appellant. 2. The CIT (Appeals) erred in dismissing the appeal of the Appellant and effectively upheld the disallowance of addition of ₹ 11,02,023/-, ₹ 50,000/- and ₹ 14,45,460/- for late deposit of TDS u/s40(a)(ia). The appellant reserves its right to add, amend, alter or modify any of the grounds stated hereinabove either before or at the time of hearing. 3. The first issue raised by the assessee in this appeal is that Ld CIT(A) erred in not condoning the delay on account of late filing of appeal. 4. Briefly stated facts are that the assessee is a firm and engaged in the construction business. The assessment was framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 till November 2012. the reports of treatment given to me are enclosed herewith for ready reference. What I am trying to state by putting all these evidences is that it is because of such pre-occupation mentally that inadvertently I missed out on filing to appeal before the Hon'ble C.I.T. (Appeals) for Asst. Year 2008-09 and only came to know about such lapse on my part when we received a notice of hearing for Asst. Year 2008-09 from C.I.T. (Appeals) on 20.03.2013, copy of which is attached herewith. In fact, because of the notice we tried to locate [he file but realized that the notice by mistake had mentioned that it is an appeal against the order u/s. 143(3) for Asst. Year 2008-09, which is fixed for hearing. This realization was because of the fact that when we searched for the appeal file -we came to know that purely due to oversight and inadvertence we had missed out on filling the appeal against 143(3) order of the Assessing Officer for the Asst. Year 2008-09. our bona fides can be clearly seen from the fact that we have filed an appeal for Asst. Year 2009-10 against 143(3) order which is almost having the identical quantum of addition and there is not reason why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax matters before any authority which could adversely affect or cause late filing of the appeal. (2) It has been noticed that in the appellant's own case for A.Y. 2008-09, the penalty order has been passed by the A.O. 27.6.2011 and during those penalty proceedings the appellant vide its letter dtd. 30.5.2011 has made the submission before the A.O. Thereafter against the penalty order the appeal has also been filed on 15.7.2011. So it is apparent that the penalty proceedings were duly attended by the appellant and appeal was also filed against the same in time hence as per the appellant's reasons of illness during the aforesaid period when the penalty proceedings were duly attended and appeal against the penalty order was filed in time then there was no reason for not to file the appeal of the assessment order u/s. 143(3) of the Act in time. So, medical reasons as pleaded could not be the reason for not filing the present appeal in time. (3) The assessment u/s. 143(3) has been completed in this case on 28.12.2010 and ill health of Shri Mayur Parmar stated to be between January, 2010 to November, 2010 hence his ill health could not be the ground for delay as the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Apex Court in the case of Vedabai Alias Vaijayanatabai Baburao Patil Vs. Shantaram Baburao Patil, 253 ITR 798, it was held as follows: In exercising discretion under section 5 of the Limitation Act, the Court should adopt a pragmatic approach. 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 arised and such case deserves a liberal approach. Further, ITAT, Chennai in the case of JCIT vs. Tractors Farm Equipments Ltd. it was held as under:- The delay cannot be condoned simply because the appellant s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in the assessment proceedings after taking due authorization. But all the necessary information required in the assessment proceedings shall be supplied by the firm and without the same the assessment cannot be completed in effective manner. Here the assessment was framed u/s 143(3) of the Act so it is transpired that all the necessary details were furnished during the proceedings. Similarly the firm will authorize the consultant for filing the appeal before the ld. CIT-A which is not possible without the involvement of the partners. ii. Similarly, we note that there were Medical reports for the illness of the family members as explained by the assessee which cannot be ignored. The Ld CIT(A) has not pointed out any defect in such medical reports. iii. We also note that the penalty appeal for the impugned assessment years was duly filed by the assessee on time. Similarly, the appeal pertaining to the assessment year 2009-10 was filed by the assessee within the specified time as provided u/s 249(2) of the Act. If the assessee being negligent then other appeals should not have been filed on time. The finding of the Ld. CIT(A) that the other appeals were on time but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the party delay on 7.7 We further hold that the case law relied by the Ld CIT(A) are factually different with the facts of the present case. In view of above, we hold that there was no mala fide/deliberate act on the part of the assessee which could attribute for delay in the filing of appeal. Thus, we condone the delay in filing the appeal by the assessee before the Ld CIT(A). 8. The next issue raised by the assessee in this appeal is that Ld CIT(A) erred in confirming the order of AO by sustaining the disallowance of ₹ 11,02,023/-, ₹ 50,000 and 14,45,460/- on account of late deposit of TDS u/s 40(a)(ia) of the Act. 9. The assessee during the year has incurred expenses as detailed under: Sr. No. Particulars Amount 1. Labour contractors 11,02,023/- 2. Labour Contractors 50,000/- 3. Labour Contractors 14,45,460/- 9.1 The assessee in support of aforesaid expenses failed to make the payment of TDS deducted within the time limit s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is confirmed. (3) Likewise, in respect of certain sub-contractors the payments were made during the year under consideration on various dates but the amount was credited in their ledger account on 31.3.2008 and the TDS was also made on 31.3.2008. Details of such deductions are given in parao of the assessment order. Once again it is reiterated that the TDS as per the provisions of Section 194C ought to have been made on the date of credit or the date of deposit whichever is earlier. Since in this case the payments have been made on various dates in the year under consideration but TDS have been made on last day of the accounting year which is gross violation of the provisions of Section 194C of the I.T. Act for which the A.O. has rightly invoked the provisions of Section 40(a)(ia) of the IT Act and disallowance of ₹ 14,45,460/- was made which is justified. 10.2 Being aggrieved by the order of Ld CIT(A) the assessee is in second appeal before us. 11. The Ld AR before us submitted that the TDS was deposited before the due date of filing of income tax return as specified u/s 139 of the Act therefore, no disallowance can be made on account of non-deduction o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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