AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1550
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....upheld the disallowance of addition of Rs. 11,02,023/-, Rs. 50,000/- and Rs. 14,45,460/- for late deposit of TDS u/s40(a)(ia). The appellant reserves its right to add, amend, alter or modify any of the grounds stated hereinabove either before or at the time of hearing. 3. The first issue raised by the assessee in this appeal is that Ld CIT(A) erred in not condoning the delay on account of late filing of appeal. 4. Briefly stated facts are that the assessee is a firm and engaged in the construction business. The assessment was framed u/s 143(3) of the Act vide order dated 28th December 2010. The copy of the order was duly served upon the assessee dated 28th December, 2010. In the assessment, various expenses disallowed by the AO and accordingly, the additions were made to the total income of the assessee. The assessee as per the provisions of Section 249 of the Act was to file appeal within the 30 days i.e. on or before 27th January, 2011. But the assessee has filed the appeal on 15th April, 2013 thus, there was a delay of 2 years and 75 days in the appeal filed before the Ld CIT(A). The assessee before the Ld CIT(A) filed an affidavit justifying the reasons for the d....
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....oned that it is an appeal against the order u/s. 143(3) for Asst. Year 2008-09, which is fixed for hearing. This realization was because of the fact that when we searched for the appeal file -we came to know that purely due to oversight and inadvertence we had missed out on filling the appeal against 143(3) order of the Assessing Officer for the Asst. Year 2008-09. our bona fides can be clearly seen from the fact that we have filed an appeal for Asst. Year 2009-10 against 143(3) order which is almost having the identical quantum of addition and there is not reason why we would not file an appeal for Asst. Year 2008-09. It is because of the above mentioned situation, which was created on and around the time when the order was received that it must have completely skipped out of our attention that the appeal is not filed against 143(3) order for Asst. Year 2008-09 while we were under an impression that the said appeal had been filed at our end. I humbly pray that this affidavit demonstrating the reason why there has been a delay may kindly be appreciated in the right spirit and in the interest of justice, the delay may kindly be condoned as there is no mala fide int....
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....#39;s reasons of illness during the aforesaid period when the penalty proceedings were duly attended and appeal against the penalty order was filed in time then there was no reason for not to file the appeal of the assessment order u/s. 143(3) of the Act in time. So, medical reasons as pleaded could not be the reason for not filing the present appeal in time. (3) The assessment u/s. 143(3) has been completed in this case on 28.12.2010 and ill health of Shri Mayur Parmar stated to be between January, 2010 to November, 2010 hence his ill health could not be the ground for delay as the appeal was to be filed in the month of January, 2011. However, it was submitted that there was some medical problem of Smt. Shantaben G. Parmar from January, 2011 to May, 2012. But from the copies of her medical reports submitted it is found that the doctor's prescription for the treatment started from 31.1.2011 while the time limit of filing of appeal in this case was 27.1.2011 which was prior to the starting of the treatment of Smt. Shanta G. Parmar. Hence again the ill health of Smt. Shantaben G. Parmar could not be a ground for delay in filing the present appeal. Moreover, the subsequen....
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.... and such case deserves a liberal approach.'' Further, ITAT, Chennai in the case of JCIT vs. Tractors & Farm Equipments Ltd. it was held as under:- "The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon 'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoid cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clear hands." 3.3 In view o....
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..... Similarly, we note that there were Medical reports for the illness of the family members as explained by the assessee which cannot be ignored. The Ld CIT(A) has not pointed out any defect in such medical reports. iii. We also note that the penalty appeal for the impugned assessment years was duly filed by the assessee on time. Similarly, the appeal pertaining to the assessment year 2009-10 was filed by the assessee within the specified time as provided u/s 249(2) of the Act. If the assessee being negligent then other appeals should not have been filed on time. The finding of the Ld. CIT(A) that the other appeals were on time but the delay in the instant appeal reflects that the negligent approach of the assessee does not appear to be correct. Rather, in our view it supports the case of the assessee for late filing of appeal. We also note that once the addition has been made in the assessment and the assessee disagrees for the same then there is no option for the assessee except to carry the matter on higher forum. 7.3 Further, if we strictly look at the medical reports of all the persons, it is clear that there was time gap between the treatment of one person....
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....e of Rs. 11,02,023/-, Rs. 50,000 and 14,45,460/- on account of late deposit of TDS u/s 40(a)(ia) of the Act. 9. The assessee during the year has incurred expenses as detailed under: Sr. No. Particulars Amount 1. Labour contractors 11,02,023/- 2. Labour Contractors 50,000/- 3. Labour Contractors 14,45,460/- 9.1 The assessee in support of aforesaid expenses failed to make the payment of TDS deducted within the time limit specified under the Act. Therefore, the AO disallowed the same and added to the total income of the assessee. 10. Aggrieved, assessee preferred an appeal to Ld CIT(A). The assessee before the Ld CIT(A) submitted that it has deducted the TDS and deposited the same before the due date of filing of income tax return as specified u/s 139(1) of the Act. 10.1 Accordingly, the assessee submitted that no disallowance on account of non-deduction of TDS can be made u/s 40(a)(ia) of the Act. However, the Ld CIT(A) disregarded the contention of the assessee and confirmed the order of the AO by observing as under: 5.3. I have carefully considered the facts of the case and submission made by the appellant. (1)....
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..... Act for which the A.O. has rightly invoked the provisions of Section 40(a)(ia) of the IT Act and disallowance of Rs. 14,45,460/- was made which is justified." 10.2 Being aggrieved by the order of Ld CIT(A) the assessee is in second appeal before us. 11. The Ld AR before us submitted that the TDS was deposited before the due date of filing of income tax return as specified u/s 139 of the Act therefore, no disallowance can be made on account of non-deduction of TDS u/s 40(a)(ia) of the Act. 12. On the other hand, the Ld DR vehemently supported the order of authorities below. 13. We have heard the rival contentions and perused the materials available on record. It is settled law that no disallowance can be made on account of non-deduction of TDS u/s 40(a)(ia) of the Act if the same is deposited on or before the due date of the filing of income tax return. In this regard, we find guidance and support from the judgment of High Court of Gujarat in the case of CIT vs. BMS Products Pvt. Ltd. reported in 44 taxmann.com 206 wherein, it was held as under: "7. The second question pertains to addition made under section 40(a)(ia) of the Act by the assessee to the sub-cont....