TMI Blog2019 (5) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... with the direction of the Tribunal. In view of the above facts and in the interest of justice, we set aside the order of the Ld. CIT(A) and restore the appeal to the Ld. CIT(A) for adjudicating on merit in accordance with law. The grounds raised by the assessee are allowed for statistical purposes. - ITA No.4788/Del/2014 - - - Dated:- 20-5-2019 - Shri Bhavnesh Saini, Judicial Member And Shri O.P. Kant, Accountant Member For the Assessee : Shri Raj Kumar Gupta, Advocate, Shri Sumit Goel, CA For the Department : Shri Kumar Hrishikesh, CIT(DR) ORDER PER O.P. KANT, A.M. This appeal by the assessee is directed against order dated 31/07/2014 passed by the Ld. Commissioner of Income-tax (Appeals)- XXXI, New Delhi [in short the Ld. CIT(A)] for assessment year 2011-12 in relation to penalty levied by the Assessing Officer for non-payment of self-assessment tax. The grounds of appeal are reproduced as under: I A. That under the facts and circumstances. the Ld. CIT (A) erred in law as well as on merits, in assuming that there is delay in filing the appeal and further erred in not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied. After repeated adjournment and non-compliance, the assessee filed written submission. The Ld. Assessing Officer after considering written submission of the assessee held that the assessee failed to establish any reasonable cause for non-payment of admitted tax liability and accordingly levied penalty equivalent to 100% of the self-assessment tax amounting to ₹ 6,42,85,283/- in order dated 27/04/2012 u/s 140A(3) of the Act. 3. Against the said penalty, the assessee filed appeal before the Ld. CIT(A) on 07/05/2012, who dismissed the appeal vide order dated 22/01/2013 as unadmitted and non-est in view of provisions of section 249(4) of the Act, which prescribe that no appeal be admitted by the Ld. CIT(A) if the tax due on the returned income has not been paid at the time of filing of the appeal. 4. On further appeal by the assessee, the Income Tax Appellate Tribunal ( in short the Tribunal ) vide order dated 14/03/2014 in ITA No. 940/Del/2013, set aside the order of the Ld. CIT(A) and directed as under: 7. We have heard the rival submissions and perused the records and the case laws cited by the parties. As per the versi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delay in payment of self-assessment tax. For the present appeal also, the AR' has made very general submission about financial difficulties by citing letters from the banks requesting the assessee to acquire the outstanding loans etc. 4.2. I note here that the assesee seems to have made it a habit not to honour its statutory obligation of payment of tax at the time fo filing the return of income. It is observed that the appellant has, however, been carrying on with its business with sizeable turnover running into hundreds of crores. Discharge of tax liability appears to be their last priority as observed from this conduct. In these circumstances, I do not agree that assessee could give priority to its business and not to its statutory responsibility of discharging the tax liability. In view of this I am of the view that repeated defaults in payment of self-assessment tax resulting in delay in filing of appeal cannot be taken lightly. 4.3. There are no facts to show that the appellant did not have the capacity to make the payment of self-assessment tax of just ₹ 6.42 crores when the turnover of the assessee was more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the defect the Ld. CIT(A) was required to decide the appeal on merits as per the direction of the Tribunal (supra). 8. The Ld. Counsel referred to pages 7 to 19 of the paper book and submitted that the fact of financial difficulty in making the selfassessment tax was evident in view of the various letters issued by the banks regarding overdue interest payment and commitment charges against letter of credit. He submitted that the Ld. CIT(A) ignored those evidences supporting the financial difficulty faced by the assessee. 9. On the contrary, the Ld. DR submitted that in the immediately preceding assessment year also the Assessing Officer levied the penalty for non-payment of self-assessment tax and thus the assessee is a habitual defaulter in making self-assessment tax payment without justified reasons. 10. We have heard the rival submissions and perused the relevant material on record. In the case, the assessee has paid the admitted self-assessment tax liability on various dates as under: On 23.03.2012 (As per Form 26AS) 75,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the delay and found that the assessee failed to produce daily cash balances details of assessee and its group concern. In view of the Ld. CIT(A) , the assessee failed to support its claim of serious financial crunch as the main reason of non-payment of admitted tax liability and delay in filing appeal. 14. In our opinion , the Ld. CIT(A) failed to notice that the appeal was filed originally within the prescribed period of 30 days from the receipt of the order of Assessing Officer. Once the defect of remittance of self-assessment tax stands removed , the Ld. CIT(A) was required to adjudicate the appeal on merits as directed by the Tribunal (supra). In our view, the action of the Ld. CIT(A) is not in accordance with the direction of the Tribunal(supra). In view of the above facts and in the interest of justice, we set aside the order of the Ld. CIT(A) and restore the appeal to the Ld. CIT(A) for adjudicating on merit in accordance with law. The grounds raised by the assessee are allowed for statistical purposes. 15. In the result, the appeal of the assessee allowed for statistical purposes. This decision was pronounced in the Open Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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