Gvk Jaipur Expressway (p) Ltd Jaipur

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vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES, JAIPUR

Jh Vh-vkj-ehuk] ys[kk lnL; ,oa Jh yfyr dqekj] U;kf;d lnL; ds le{k
BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM

vk;dj vihy la-@ITA No. 435,436,437 & 438/JP/2014
fu/kZkj.k o”k Z@ Assessment Years : 2006-07 to 2009-10

M/s. GVK Jaipur Expressway (P) Ltd. cuke The ACIT-TDS
286 KM, Toll Plaza, Ajmer Road, NA-8 Vs. Jaipur
Village-Thikaria, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No .: AABCG 5514 J
vihykFkhZ@ Appellant izR;FkhZ@ Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal , CA
jktLo dh vksj ls@ Revenue by: Mrs. Neena Jeph, JCIT -DR

lquokbZ dh rkjh[k@ Date of Hearing : 22/03/2016
?kks”k .kk dh rkjh[k@ Date of Pronouncement : 31 /03/2016

vkns’k@ ORDER

PER BENCH:-

The assessee has filed these appeals against common order of the

ld. CIT(A)-III, Jaipur dated 27-03-2014 for the assessment years 2006-07

to 2009-10 wherein the assessee has raised almost common issues in all

the appeals. However, for the sake of convenience, we are mentioning the

grounds of appeal for the assessment year A.Y. 2006-07 as under:-

??1. On the facts and in the circumstances of the case, the
ld. CIT(A) has grossly erred in not condoning the delay in
fling of appeal before him by virtue of power vested u/s
249(3) without properly appreciating the reasonable cause in
———————Page 2———————

2 ITA No. 435//JP/2014
M/s. GVK Jaipur Expressway (P) Ltd. vs. ACIT (TDS), Jaipur .

not filing within the prescribed time, thus action of the ld.
CIT(A) deserves to be held bad in law and the consequent
order passed by the ld. CIT(A) deserves to be set aside and
the ld. CIT(A) be directed to decide the matter afresh on
merits.

1.1 That the ld. CIT(A) has further erred in not
appreciating the fact that the delay caused in filing of the
appeal is primarily attributable to the mistake of the courier
agency in not delivering the necessary documents on time to
the Jaipur office of the appellant company and failed to
appreciate that the assessee always had acted bonafide, thus
action of the ld. CIT(A) is against the principle of natural
justice, deserves to be held bad in law.

2. On the facts and in the circumstances of the
case, the ld. CIT(A) has grossly erred in sustaining the action
of the AO in holding that the assessee has not deducted tax at
source on the charges paid to bank without considering the
fact that the assessee has made payment to bank on which
assessee company was not liable to deduct tax at source in
terms of circular no. 93 dated 26-09-1972 issued by CBDT
thus the liability of Rs. 22,440/- created u/s 201 and Rs.
14,137/- created u/s 201(1A) deserve to be deleted.

2.1 That the ld. CIT(A) has further erred in ignoring
fact that the bankers has provided services to the assessee as
per their policy and charges levied by bank from the
maintenance of the account are in accordance with the
provision contained in the Negotiable Instrument Act for
which the provision of Section 194C are not applicable, thus
the liability of Rs. 22,440/- created u/s 201 and Rs. 14,137/-
created u/s 201(1A) deserve to be deleted.

3. On the facts and in the circumstances of the case, the
ld. CIT(A) has grossly erred in sustaining the action of the
AO in holding that the assessee in default for non-deduction
of tax at source on the payment of Rs. 30,17,377/- made to
M/s. LEA Associates without considering the fact that the
assessee company has already deducted TDS on such
———————Page 3———————

3 ITA No. 435//JP/2014
M/s. GVK Jaipur Expressway (P) Ltd. vs. ACIT (TDS), Jaipur .

payment, thus the liability of Rs. 1,69,275/- created u/s 201
and Rs. 1,01,565/- created u/s 201(1A) deserve to be deleted
in toto.

Alternative Ground

4. Without prejudice to above in the alternative, on
the facts and in the circumstances of the case AO has grossly
erred in not reducing the amount of discount relatable to
those channel partners whose returns of income and other
particulars of income were filed by the assessee before the
AO in terms of decision of Hon’ble Supreme Court in the
case of M/s. Hindustan Coca Beverage (P) Ltd. vs. CIT

2.1 At the outset of the hearing the ld. AR of the assessee prayed that

the appeals of the assessee have not been decided by the ld. CIT(A) on

merit but the same have been dismissed by the ld. CIT(A) on the ground

that the appeal was filed late by 7 days. The ld. AR of the assessee also

prayed that the delay was caused in filing of appeals primarily due to the

mistake of Courier Agency i.e. M/s. Blue Dart Courer Services and that

the assessee had always acted in a bonafide manner and depended on the

experts to attend the legal formalities. Thus the ld. AR of the assessee

prayed that the delay of 7 days in filing the appeal may be condoned and

the appeals may kindly be restored to the file of the ld. CIT(A) to decide

them afresh on merits by providing reasonable opportunity of being heard

to the assessee.

2.2 The ld. DR vehemently relied on the order ld. CIT(A).
———————Page 4———————

4 ITA No. 435//JP/2014
M/s. GVK Jaipur Expressway (P) Ltd. vs. ACIT (TDS), Jaipur .

2.3 We have heard the rival contentions and perused the materials

available on record. It emerges from the record and arguments that the

delay of 07 days in filing the appeals is not on account of the assessee

but it was on the part of the Courier Agency which could not supply the

documents to the assessee in time and the assessee had to suffer on the

lapse of the courier agency. It appears that such delay of small 07 days

may be condoned in view of the decision of the Hon’ble Apex Court in

the case of Collector, Land Acquisition vs. Mst. Katiji and Others, 167

ITR 471 wherein the Hon’ble Court has observed as under:-

?? The Legislature has conferred power to condone delay by
enacting section 5 of the Limitation Act, 1963, in order to enable
the courts to do substantial justice to parties by disposing of
matters on merits. The expression ” sufficient cause ” in section 5 is
adequately elastic to enable the courts to apply the law in a
meaningful manner which subserves the ends of justice–that being
the life-purpose of the existence of the institution of courts. A
justifiably liberal approach has to be adopted on principle.

“Every day’s delay must be explained” does not imply a
pedantic approach. The doctrine must be applied in a rational,
common sense and pragmatic manner.

The doctrine of equality before law demands that all
litigants, including the State as a litigant, are accorded the same
treatment and the law is administered in an evenhanded manner.
There is no warrant for according a step-motherly treatment when
the State is the applicant praying for condonation of delay.

“When substantial justice and technical considerations are
pitted against each other, the cause of substantial justice deserves
to be preferred, for the other side cannot claim to have a vested
right in injustice being done because of a non-deliberate delay.”
———————Page 5———————

5 ITA No. 435//JP/2014
M/s. GVK Jaipur Expressway (P) Ltd. vs. ACIT (TDS), Jaipur .

Thus, in view of the deliberations of Hon’ble Apex Court in the case of

Collector , Land Acquisition vs. Mst. Katiji and Others (supra), the delay

is condoned and the appeals of the assessee are restored back to the file

of the ld. CIT(A) to decide them afresh on merit by providing reasonable

opportunity of being heard to the assessee. Thus all the appeals of the

assessee are allowed for statistical purposes.

3.0 In the result, the appeals of the assessee are allowed for statistical

purposes.

Order pronounced in the open court on 31 /03/2016.

Sd/- Sd/-
(Vh-vkj-ehuk ) (yfyr dqekj )
(T.R. Meena) (Laliet Kumar)
ys[kk lnL;@ Accountant Member U;kf;d lnL;@ Judicial Member

Tk;iqj@ Jaipur
fnukad@ Dated:- 31 /03/ 2016
*Mishra
vkns’k dh izfrfyfi vxzsf’kr@ Copy of the order forwarded to:
1. vihykFkhZ@ The Appellant- M/s. GVK Jaipur Expressway (P) Ltd.
Jaipur
2. izR;FkhZ@ The Respondent- The ACIT(TDS), Jaipur
3. vk;dj vk;qDr¼vihy ) @ CIT(A)
3. vk;dj vk;qDr@ CIT,
4. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@ DR, ITAT, Jaipur
5. xkMZ QkbZy@ Guard File (ITA No. 435/JP/2014)
vkns’kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar

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Ashni Shah is pursuing Chartered Accountancy and is currently engaged as Article Assistant at Rasesh Shah and Associates and can be reached at ashnishah2017@gmail.com. She loves Dancing and Gyming.

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