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TMI Blog2024 (7) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant details as well as the certificate in Form No.26A were not produced before the CIT(A) and consequently the same remained unexamined. Hence, in the facts and circumstances of the case and in the interest of justice the impugned orders of CIT(A) are set aside and the matters are remanded to the record of the A.O for fresh adjudication after considering the relevant details as well as certificates issued u/s 26A and verification of the factual mistake as pointed out by the assessee. Appeals of the assessee are allowed for statistical purposes. - Shri Vijay Pal Rao, Judicial Member And Shri B.M. Biyani, Accountant Member For the Assessee : Shri Milind Wadhwani, AR For the Revenue : Shri Ashish Porwal, Sr.DR ORDER PER BENCH: These 6 appeals by the assessee are directed against 6 separate orders of Commissioner of Income Tax (Appeals), National Faceless Appeal Centers,(NFAC) Delhi all dated 13.12.2022 arising from the orders passed u/s 201(1) of the Income Tax Act for the Assessment Years 2012-13 to 2017-2018 respectively. 2. There is a delay of 320 days in filing these appeals. The assessee has filed an application for condonation of delay which is supported by the affidavit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was not having any information/ knowledge about the impugned order as the said order was never served upon the assessee in physical form. There is no dispute that in the Form 35 the assessee has specifically negated the service of notice or the communication sent on e-mail. This factual position is not disputed by the revenue that the impugned order was passed ex-parte and the same was communicated only through electronic mode through e-mail to the e-mail id available with the department. It is pertinent to note that the impugned order was passed by the A.O u/s 201(1) of the Act for the default on the part of the assessee to deduct the tax at source in respect of payment made to BDA for the execution of the work through tendering process and finally the payment made to the contractor after deduction of TDS by the BDA. The assessee has also filed the certificate issued u/s 26A of the Act in respect of fact that BDA has duly considered these amounts in their computation of income and filed the return of income. Apart from these reasons explained by the assessee it is pointed out that there is a mistake in calculation made by A.O of the TDS default on the part of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal order was passed on 13.12.2022 but physical order was not served on appellant. The appellant is the State Govt. Department and usually works on physical documents hence the appeal order remained unnoticed. When summon u/s 131 of the Income Tax Act was issued for the recovery of demand to appear on 31.10.2023, the appellant came to know that this appeal has been dismissed on 13.12.2022. The Assistant Commissioner and other staff of the appellant were engaged in the election of State Legislative Assembly and due to this reason, delay occurred in filing appeal. The delay in filing appeal is unintentional. 9. The appellant prays to seek leave to add or amend any grounds of appeal, if necessary, in the interest of justice under law. 10. The appellant prays to condone the delay in filing appeal. 11. The appellant prays to delete the demand of tax and interest or to remand the case in the interest of justice. 4. The Ld. AR of the assessee has submitted that the assessee acts as a Drawing Disbursing Officer (DDO) and oversees the welfare programme undertaken by Govt. of Madhya Pradesh in the field of health, education, economic, social and human resource development of the members of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culation mistakes. The Ld. AR has further pointed out that for the assessment year 2012-13 the CIT(A) fixed the date of hearing for 15.12.2022 whereas the impugned order was passed on 13.12.2022. In any case the appeal of the assessee were dismissed for non-prosecution by ex-parte order because the assessee did not received the notice which were sent only on the electronic mode. Hence, the Ld. AR has prayed that the impugned order of CIT(A) be set aside and the matter may be remanded to the record of the A.O for fresh adjudication after considering the relevant details and particularly the certificate issued u/s 26A of the Act. On the other hand Ld. DR has relied upon the orders of authorities below. 5. We have considered the rival submissions as well as relevant material placed on record. The CIT(A) has passed identical orders for all 6 years involving the common issue holding the assessee as assessee in default in respect of the payments made by the assessee to BDA without deducting TDS. The A.O has recorded the findings in para 5 of the impugned order as under: 5. I have carefully considered the submissions/replies made by or on behalf of the assessee and the same are not found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,081/- based on an alleged T default amount of Rs. 22,17,620/-, which is not mathematically possible indicating a calculation error by the Ld. AO. (iv) For the assessment year 2016-17, Para 4 of the assessment order states that the payment made to BDA amounts to Rs. 4,49,30,940/-. However, alleged TDS default is erroneously calculated based on Rs. 4,89,30,940/-. 5. Primafacie it appears that the A.O has taken into consideration some amounts received by the BDA from the departments other than the assessee and therefore, the calculation mistakes/errors cannot be ruled out. The assessee has now filed the certificate in Form No.26A placed at page 77 to 92 of paper book. Thus, all these factual aspects of the matter are required to be properly verified while computing the quantum of default if any made by the assessee. The assessee has relied upon the order of the Co-ordinate Bench in case of District Organiser Tribal Welfare, Ujjain Vs ITO(supra) for the assessment year 2008-09 however, it is pertinent to note that the factual point that the BDA is also retaining some percentage on account of supervision charges was not brought to the notice of the Tribunal in the said case. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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