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TMI Blog2016 (3) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Air Transport Association BSP (in short referred as IATA-India) had filed applications in different years for issue of certificate u/s. 195(1) of the Act, for remittances to International Air Transport Association (Canada), in short referred to as IATA-Canada. The appellant (i.e. IATA-India) was a branch office of IATA-Canada. The Reserve Bank of India vide its letter dated 25.11.1995 had permitted IATA-Canada to establish branch office in India for the purpose of undertaking certain noncommercial activities on no profit basis. 4. IATA-Canada through its administrative office in Geneva, Switzerland, had entered into an agreement with GSI Transport Tourism SA, a corporation incorporated in France (ADP-GSI) for BSP Link Services. In pursuance to the above agreement, ADP-GSI had developed the system as per the specific need of the Airlines and Agents to provide BSP Link services. BSP Link is a system, wherein the manual operations such as issue of debit noted/credit notes, issue of refund, billing statement and all the information relating to tickets are carried out electronically by BSP Link System for Agents as well as for Airlines who have participated in the BSP Link. 5. IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals on the grounds that petition seeking condonation of delay was not attached along with the appeal memo filed in form No. 35 and that appellant was not able to give sufficient cause to justify the delay. 9.2. In this regard we find that as per law, it is not mandatory that petition for condonation of delay has to be mandatorily attached along with appeal memo. If an appellant has filed the petition on or before the date of hearing of the appeal, the appellate authority should not brush aside the petition merely for the reason that the petition was not filed along with appeal memo. Further with regard to justification of delay, it is noted that the appellant had filed duly sworn affidavit before the Ld. CIT(A) in support of the reasoning given by it to explain the delay. The appellant also attached detailed note on reasoning for condonation of delay in filing of the appeal. We find it appropriate to reproduce the said note hereunder: "1. IATA BSP India (IATA, India), the appellant is a branch office of International Air Transport Association, Canada ("IATA, Canada"). The Reserve Bank of India vide its letter dated 25.11.1995 has permitted IATA, Canada to establish branch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the applicant without any deliberate intent or purpose, the delay in filing the appeal be condoned. 11. We further request your honour to kindly take liberal approach in condoning delay in filing appeal." 9.3. In support of the aforesaid note, reliance has been placed on various judgment including the judgment of Hon'ble Supreme Court in the case of Mst. Katiji and others 167 ITR 471(SC), Ram Nath Saho order dated 27.02.2002 (SC) and N. Balakrishnan (1998) 7 SCC 123 for the proposition that in absence of any malafide intention for causing the delay deliberately as a dilatory tactic, court should normally condone the delay. During the course of hearing it has been vehemently argued by the Ld. Counsel that there was no malafide intention on the part of the appellant in filing the appeal late. The delay occurred inadvertently due to misunderstanding of legal position and incorrect advice received by it. The cause of justice will suffer in case the delay is not condoned. 9.4. On the other hand, the Ld. DR has contended that Ld. CIT(A) has rightly held that the appellant was assisted by a well established firm of consultants and therefore, justification of delay given be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us was aggrieved with the orders passed by the respective officer u/s. 195(2) holding the appellant as liable to deduct tax at source on the impugned remittances. Such orders are not appealable to Ld. CIT(A) u/s. 246A as would be clear from the plain reading of section 246A. Therefore, with a view to provide the remedy of appeal against such orders, section 248 was specifically brought on statute, wherein it has been provided that if a person disputes its obligation to deduct tax at source u/s. 195, then, he may appeal to Ld. CIT(A) for obtaining a clarity and determination of the issue that whether the said person is liable to deduct tax at source on certain remittances. Ld. CIT(A) has held in all the appeal before us that the appellant was not eligible to file appeal u/s. 248 as it did not fulfill requisite conditions of section 248 and therefore, he dismissed the appeal of the appellant in-limine. 11.2. Being aggrieved, the appellant contested the orders of the Ld. CIT(A) before us, objecting to the action of Ld. CIT(A) in holding that the appeal of the appellant was not maintainable as per provisions of section 248 of the Act. 11.3. Before we proceed to discuss the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said date do not require compliance of first condition for filing of appeal u/s. 248. On the other hand, Ld. DR has submitted that the appellant has not been able to demonstrate properly on facts that tax liability has been born by it. There is confusion and contradiction in evidences filed by the appellant and therefore Ld. CIT(A) has rightly rejected the stand of the appellant. 11.7. We have gone through the orders passed by the Ld. CIT(A) and submissions made by both the sides. In our considered view this issue also requires re-examination by Ld. CIT(A) in terms of our directions and guidance discussed hereunder: "(1) We find force in the arguments of Ld. Counsel that right of appeal is substantive right, and therefore, it cannot be curtailed with retrospective effect. Thus, in view of clear and well settled position of law, the right of appeal vested in favour of the appellant on the date of making of remittance. The right of appeal is a statutory right and has been conferred by the statute upon the persons who may be aggrieved with certain provisions of the statute. As per section 195, the obligation of deduction of tax at source arises, simultaneously and immediately, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties inter se, even if initial written agreement may not clearly suggest so, then under such circumstances, he can be said to have complied with requisite condition of section 248. Therefore, we send this issue back to the file of Ld. CIT(A) to examine the facts of these cases keeping in mind this legal background. The appellant is directed to submit before the Ld. CIT(A) all requisite evidences to show that the appellant has borne impugned liability of tax deducted at source under an agreement or other arrangement, as the case may be. The Ld. CIT(A) shall give adequate opportunity of hearing to the appellant and shall allow him to raise all legal and factual issues on this aspect. The appellant shall also file requisite evidences to show that the impugned amount of tax has been paid by it to the credit of Central Government, which is another mandatory condition for filing of appeal u/s. 248." 12. Thus, all appeals are sent back to the file of the Ld. CIT(A) to be decided afresh in terms of our directions as given above in the order. The appellant is permitted to raise all legal and factual issues, and to file requisite evidences which shall be duly considered by Ld. C ..... 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