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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 ..... al the ld. CIT Appeals had erred in deciding that the extended period of limitation by the Honourable Supreme Court was expired from 90 days from 15.03.2021. 3. In the facts & circumstances of the appeal the ld. CIT Appeals was grossly negligent in not taking contingence of the further order of the Supreme Court for extension of limitation due to Covid-19. 4. In the facts & circumstances of the appeal the ld. CIT Appeals was erred in not deciding the case on merits at all. 5. We reserve our right to add, amend, alter, or drop any of the grounds of the appeal." 3. Brief fact of the case are that the assessee Birla Cement Works Staff Provident Fund is recognized provident fund, set up under the employees Provident Fund & miscellaneous provisions Act, 1952 approved by the regional Provident Fund Commissioner. The fund is doing all the activities which are required to be undertaken under the PF and other statutory act viz collect the contribution from employees & employer, manage the PF funds, maintain the records and accounts of employees, distribution the superannuation and pension and also make the compliance of the law under the various statutory law. During the period, asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a mandatory attachments, the date of filing of regular statement for Quarter 1 of F.Y. 2019-20 is 26.11.2020 and the date of order passed is 30.11.2020. As per the normal practice of the Department, the order u/s 200A is generally served on the appellant by email on the same day. The appellant has also attached another document being Communication Ref No. 01072021/00185/CD on the subject of "Intimation of Outstanding Demand issued by the ITO, TDS, Bilwara, Rajasthan. On face of the Communication Ref No. 01072021/00185/CD, it appears that, the date of communication is 01.07.2021 and it appears that, the appellant has received the communication on 14.07.2021, which is mentioned in column No.2C of Form No 35 being the date of service of the demand notice instead of mentioning the date of service of order u/s 200A. 4.2 Further, the appellant has also attached a copy of CBDT's Circular No. 10/2021, vide F.No. 225/49/2021/ITA-II, dated 25.05.2021. The circular No. refers to the decision of the Hon'ble Supreme Court / Suo Moto Writ petition (Civil) no. 3 of 2020. The relevant portion of which is reproduced hereunder: "in computing the period of limitation for any suit, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income Tax Act, 1961. The legislature has given such an importance to the Verification Column to the extent that even prosecution proceedings are envisaged as per the provisions of section 277 of the Act. 4.5 As stated above, the appellant has not filed the appeal within the prescribed time nor sought for condonation of delay in filing appeal in the Form No. 35 Moreover, the appellant has also furnished wrong information in Form No. 35 and hence has also filed a false verification under the Act. Further, even during the appellate proceedings, the appellant has not sought for condonation of delay Therefore, the present appeal is held to be an invalid appeal and hence is not adjudicated upon 5. In the result, the appeal is treated as dismissed for statistical purposes." 5. Feeling dissatisfied from the above order of the ld. PCIT, the assessee has preferred the present appeal on the ground as stated hereinabove. In support of the grounds so raised the ld. AR appearing on behalf of the assessee has placed reliance on the written submission which is extracted herein below:- "The assessee M/s Birla Cement Works Staff Provident Fund ("Trust" or "appellant") is recognized provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Honourable Supreme court was expired from 90 days from 15.03.2021. 3. In the facts & circumstances of the case the Id. CIT Appeals was grossly negligent in not taking cognizance of the further order of the supreme court for extension of limitation due to Covid-19. Our detailed representation on all the above three grounds is as under: The intimation dated 30.11.2020 was not received by the assessee and notice of due demand in this regard was received to assessee on 14-07-2021 from the jurisdiction assessing officer and being aggrieved with the order, assessee has filled appeal before CIT Appeals on 30.10.2021. Due to Covid period in March 2020, the honourable supreme court has taken suo moto cognizance of difficulties that might be faced by the litigants in 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judicious view of the matter We have relied upon following case law Our above contentions are also supported by following juridical pronouncements: 1. GB Builders-Vs-ACIT-ITAT-Ahmedabad In this matter it was held that- "Once the assessee has initially deposited TDS and furnished Statement in Form 26QB within time, but committed a technical error while depositing TDS resulting in non-grant of TDS to transferor, compelling it to again deposit TDS along with interest for late deposit, then, in the interests of justice and considering the fact that no loss is caused to the Revenue, the assessee cannot be saddled with levy of late filing fee u/s 234E of the Act. taking a judicious view of the matter. In result, we hold that Ld. CIT(A) has erred in law and in facts in upholding levy of penalty u/s 234E of the Act." 2. Sh.-Gurpreet-Singh-Vs-ACIT-ITAT-Chandigarh "However, there also cannot be any denial that where the lapse came about due to a mere technical error, like the one in the present case, ie, inadvertent wrong filing of TDS Statement, i c., in Form No. 26QB, rather than in the applicable Form No. 270, there is no case for levy of late filing fee u/s 234E of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived to assessee on 14-07-2021 from the jurisdiction assessing officer and being aggrieved with the order, assessee has filled appeal before CIT Appeals on 30.10.2021. Due to Covid period in March 2020, the honourable supreme court has taken suo moto cognizance of difficulties that might be faced by the litigants in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osited TDS along-with late filing interest Rs. 46,977/- payable for 14 months on 16-12-2015. Ld. CIT(A) also did not appreciate that had the assessee at the time of initial deposit of TDS mentioned the correct PAN numbers i.e. had the assessee not committed the aforesaid technical error, there would have 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 Un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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