KMP Expressways Limited vs JCIT

O R D E R

“1.

On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) ["Ld. CIT (A)"] erred in rejecting the application for condonation of delay and dismissing the appeal as time-barred.

2.

The Ld. CIT(A) failed to appreciate that the Hon'ble Supreme Court in M.A. No. 21 of 2022 in SMW(C) No. 3 of 2020 has directed that for any period where the limitation expired between 15.03.2020 and 28.02.2022, a further period of 90 days from 01.03.2022 is granted. Since the impugned order was served on 03/09/2021, the appeal filed on 20/10/2021 was well within the extended limitation period, and therefore, the issue of condonation of delay did not arise.

3.

The Ld. CIT(A) erred in holding that the reasons for delay were not acceptable, ignoring the binding judgments of the Hon'ble Supreme Court regarding the extension of limitation due to the pandemic and technical glitches.

4.

Without prejudice to Ground 1, the Ld. CIT (A) erred in not adjudicating the appeal on merits, where the penalty U/s 272A (2) (c) of Rs. 31,400 levied by the JCIT is unjustified, unwarranted, and bad in law.

5.

The Ld. AO failed to mention the specific date of processing of the TDS return and the initiation/conclusion of the 201 proceedings in the penalty order, making the order passed without application of mind.

6.

The Ld. AO failed to specify the date of processing of the TDS return and the dates of the 201 proceedings, making the penalty order arbitrary.

7.

The Ld. AO failed to properly dispose of and consider the objections/submissions filed by the Assessee before passing the penalty order, violating principles of natural justice.

8.

The Ld. AO failed to provide a reasonable opportunity of being heard and did not dispose of the objections filed by the assessee

9.

The learned CIT (A) erred in law and on facts in dismissing the appeal in limine (at the threshold) due to a technical delay of 25 days, without considering the merits of the case.

10.

Your appellant reserves the right to add, alter, amend all or any of the above grounds of appeal, till the appeal is finally heard and decided.”

“7.

From examination of record, it is crystal clear that penalty order dated 19/07/2021 u/s 272(A)(2)(g) was issued regarding Assessment Year 2011-12. The Ld. AO had issued penalty order after a gap of 10 years for belatedly filing of TDS return by the assessee. The penalty proceedings have been initiated without passing of order u/s 201/201(1A) of the Act. In similar circumstances in ITA No.2987/Del/2022 titled as "Lucknow Sitapur Expressways Ltd. vs. JCIT decided on 19/12/2023 in para No.3 provides as under: -

"3.

We have heard the rival submissions and perused the materials available on record. It is not in dispute that the assessee for the relevant quarters of the financial year 2011-12 had filed its TDS returns belatedly. The Tax deducted were duly remitted by the assessee with applicable Interest to the account of the Central Government. Admittedly, no order was passed u/s 201(1)/201(1A) Of the Act on the TDS returns filed by the assessee for the respective quarters. After a gap of nearly 8 years, the Id. AO directly levies penalty u/s 272A(2)(c) of the Act for belated filing of TDS returns by the assessee. At the outset, this penalty proceeding has been initiated without there being any order passed u/s 201(1)/201(1A) of the Act framed on the assessee. Moreover, on perusal of the penalty order, we find that the Id. AO had not even mentioned what is the default committed by the assessee and what information ought to have been furnished by the assessee in the TDS statements or particulars mentioned in section 133 or section 206 or section 206C or section 285B of the Act. The Id. AO had not even mentioned the fact as to whether the assessee is obliged to file statements or particulars u/s 133/206/206C/285B of the Act. None of these sections were even mentioned by the Id. AO in his penalty order. Hence this itself goes to prove that there is complete of non-application of mind on the part of the Id. AO while levying the penalty apart from levying the same after a belated period of 8 years. Hence, the penalty levied would have no legs to stand in the eyes of law and accordingly directed to be deleted. Accordingly, the ground raised by the assessee is allowed."

8.

In view of above material facts and law of precedence it is held that, the impugned order of penalty is unsustainable.”