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TMI Blog2024 (2) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... Form No 26Q directly through correction statement. Therefore, assessee trust compelled to file return in another Form 26Q and the same Form was processed u/s 200A of the Income Tax Act 1961 by the Central processing Cell of TDS treated the same return as a new return. Accordingly, the Central processing Cell of TDS has imposed late fee considering the delay of 484 days ignoring the facts of the case. The intimation of demand in this regard was received to assessee on 14.07.2021 from the jurisdiction assessing officer. Thus, it is evidently clear that there is no delay in payment of taxes but due to the technical glitches on the part of the system the correct form is uploaded. Thus we direct the ld. AO to delete the levy of penalty - Decided in favour of assessee. - Dr. S. Seethalakshmi, Jjudicial Member And Shri Rathod Kamlesh Jayantbhai, Accountant Member For the Appellant : Sh. Ashok Somani, C.A. For the Respondent : Ms Nidhi Nair, Sr.- DR ORDER PER BENCH: These three appeals are filed by the assessee and are arising out of the order of the CIT(A), National Faceless Appeal Centre, Delhi all dated 27.03.2023 [Here in after referred as Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 26Q hence immediately trust made efforts to file correction statement. However, due to technically reason Traces has not allowed to make correction in Form 240 and also not permitted to replace the data in Form No 26Q directly through correction statement. Therefore, assessee trust compelled to file return in another Form 26Q and the same Form was processed u/s 200A of the Income Tax Act 1961 by the Central processing Cell of TDS treated the same return as a new return. Accordingly, the Central processing Cell of TDS has imposed late fee of Rupees 96,800/- considering the delay of 484 days ignoring the facts of the case. The intimation of demand in this regard was received to assessee on 14.07.2021 from the jurisdiction assessing officer. 4. Aggrieved from the above order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds of the appeal so raised by the assessee, the relevant findingsof the ld. CIT(A) after considering the remand report in the appeal of the assessee was dismissed and the relevant findings of the ld. CIT(A) is reiterated here in below:- 4.1 As per Colum No. 14 of Form No. 35, the appellant has stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, order u/s 200A of the Act, dated 30.11.2020 was served on the appellant on 30.11.2020 itself by email. In that case, the normal time for the filing of appeal as per the provisions of the Act is 30.12.2020. However, in view of the order of the Hon'ble Supreme Court / Suo Moto Writ petition(Civil) no. 3 of 2020, the date gets extended to 13.06.2021 i.e. three months from 15.03.2021. However, the appellant has filed the present appeal on 27.10.2021. Therefore, it is stated that even after considering the extended time limit granted by the Hon'ble Supreme court, still there is a delay in filing appeal. Situation 2: As stated earlier, the appellant has mentioned the date of service of the order under dispute i.e. order u/s 200A as 14.07.2021. However, as stated earlier, it appears that the date of service mentioned by the appellant of 14.07.2020 appears to be the date of service of the Communication Ref. No. 01072021/00185/CD dated 01.07.2021. But still, even if the date 14.07.2021 is adopted as the date of service of the order u/s 200A, even in that case, the time limit for filing appeal would expire on 13.08.2021. However, the appellant has filed an appeal on 27.10.2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service. The due compliance of Chapter XVII of the Income Tax Act was made by the assessee trust and tax was deducted on the interest payment made to ex-employee regularly. The assessee trust has also deposited TDS timely to the central government account and filed TDS return in Farm 24Q on 29.10.2019 within the prescribed due dates under the law. Later on, it comes to knowledge to assessee that the data of the same deduction wherein the interest paid to retired employee on their provident fund balances have to file in Form No. 26Q hence immediately trust made efforts to file correction statement. However, due to technical reason Traces has not allowed to make correction in Form 24Q and also not permitted to replace the data in Form No 26Q directly through correction statement. Therefore, assessee trust compelled to file correction statement of 24Q on 23.11.2020 by nullifying the data filed in original return and another Form 26Q has been filed on 26.11.2020 and the same Form was processed u/s 200A of the Income Tax Act 1961 by the Central processing Cell of TDS treated the same return as a new return Accordingly, the Central processing Cell of TDS has imposed late fee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l judicial or quasi judicial proceedings. (Bold and underline inserted) However, while deciding the appeal the Id. CIT appeals has only noticed, the order of honourable supreme court of March 2020 but ignored all the further extensions specially dated 10.01.2022 where in the extension was further extended up to 28.02.2022. Hence as per the said order our appeal was filed within extended time so it was not time barred. And the Id CIT appeal has grossly erred in rejecting the said appeal treating it time barred. Grounds of Appeal:- 4. In the facts circumstances of the case the Id. CIT Appeals was erred in not deciding the case on merits at all. The learned CIT appeals has rejected the appeal treating it time barred (however it was not) without considering the matter on merit. On the merit we request as under: (a) By misconception of the assess that the TDS was related to salary hence the assessee has filed TDS return in Form24Q instead of 260, (because TDS was on interest and not on salary) well in time on 29.10.2019. As the assessment was done by CPC the said facts could not be known to CPC but the learned commissioner appeal must have considered the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that case of the assessee is very much on factual and covered by the decision of the other bench of the ITAT. Considering that aspect of the matter the ld. AR of the assessee submitted that the assessee being small trust it would be in the interest of justice if the assessee is granted the justice by bench considering the covered similarly matter decided by the other benches. The assessee filed the following documents in support of the contentions:- Sl. No. Particulars Page No. From To 1 Written Representation 1 4 2 Power of Attorney 5 5 3 Form 36-ITAT 6 14 4 Facts and Ground of appeal at ITAT 15 16 5 Order of CIT Appeal 17 20 6 Form-35 CIT Appeal 21 27 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filling petitions/ applications /suits/ appeals / all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic. Later on in this matter the honourable supreme court on 10.01.2022 directed in para no 5(1) in order, as under: .... The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. (Bold and underline inserted) However, while deciding the appeal the Id. CIT appeals has only noticed, the order of honourable supreme court of March 2020 but ignored all the further extensions specially dated 10.01.2022 where in the extension was further extended up to 28.02.2022. The date of filling the appeal was 27.10.2021 and the date of order is 30.11.2020. The period of exclusion is from 15.03.2020 till 02.10.2021, notwithstanding the actual ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay of 484 days ignoring the facts of the case. The intimation of demand in this regard was received to assessee on 14.07.2021 from the jurisdiction assessing officer. Thus, it is evidently clear that there is no delay in payment of taxes but due to the technical glitches on the part of the system the correct form is uploaded. The similar issue has been decided by the ITAT bench of Ahmedabad in ITA no. 626/Ahd/2018. The relevant finding of the coordinate bench is as under : 6. We have heard the rival contentions and perusal the material on record. We note that in the present facts, the assessee had initially deposited the entire TDS in respect of purchase of immovable property on 24-11-2014 u/s 194-IA of the Act i.e. within the due date from purchase of immovable property. Due to certain technical error committed (incorrect interchanging of PAN numbers of buyer and seller in online filing of Statement 26QB), the seller could not get credit of TDS and later, on the advise of Revenue authorities again the buyer (the assessee) paid the TDS again amount alongwith interest for late deposit. The CPC, Ghaziabad processed revised form 26QB filed on 16-12-2015 u/s. 200(A)(1) and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been no question of levy of interest u/s 234E of the Act. The Ld. CIT(A) also did not take cognizance of the fact that in the facts of the case, there was no loss caused to the Revenue. While, respectfully following the jurisdictional High Court in the case of Rajesh Kourani supra, we are also of the view that machinery provisions cannot override the substantive provisions, but in the instant facts, the issue for consideration and facts before us are different as compared to Rajesh Kourani case (supra), on which reliance has been mechanically placed by Ld. CIT(A). It is a settled law as held by the Hon'ble Gujarat High Court in the case of Rajkot Engineering Association v. UOI [1986] 26 Taxman 60 (Gujarat) that the Revenue authorities should adopt a judicial approach and consider all attendant circumstances. Again, the Gujarat High Court in the case of Trust For Reaching The Unreached Through Trustee v. Commissioner of Income Tax (Exemptions), Ahmedabad[2021] 126 taxmann.com 77 (Gujarat) has stressed the need for the Revenue Authorities taking a judicious approach. The Gujarat High Court in the case of Sarvodaya Charitable Trust v. ITO 2021] 125 taxmann.com 75 (Gujarat) held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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