TaxTMI 
TaxTMI 
2020 (1) TMI 1749
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....2. At the outset, we notice that the present appeal is time barred by 2054 days. The assessee has filed an affidavit along with condonation of delay petition. 3. The Ld. AR of the assessee has referred to the decision of the Hon'ble Bombay High Court in the case of Anil Kumar Nehru Vs. ACIT, Circle 16(2), Mumbai, Income Tax Appeal (L) No. 1448 of 2016 dated 13th January, 2017 wherein the Hon'ble High Court rejected the plea of the assessee of condonation of delay stating that reasons stated by the assessee is not bonafide reason and therefore, delay cannot be condoned. Thereafter, the assessee therein preferred SLP before the Hon'ble Supreme Court in Civil Appeal No.(s) 11750/2018 ( arising out of Special Leave Petition (C) No.(s) 15715/....
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..... The moot point is as to whether such a long delay deserves condonation. At this stage, it is relevant to note the judgment of the Hon'ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. Similar to the cases under consideration, in that case too, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon'ble jurisdictional High Court condoned the delay. 4. In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 Bom HC, there was a delay of....
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.... us. We find that reasons specified therein are justified and that the delay cannot be attributed to the deliberate conduct of the assessee neither through intention nor through action. Further, considering the judicial pronouncements as referred hereinabove, we condone the delay in respect of both these appeals and proceed to hear them on merits. Adjudication of grounds in appeal Memo 6. At the time of hearing through video conference, the Ld. AR of the assessee submitted that common grounds were raised in both the appeals i.e. whether the assessee has obligation to deduct tax at source in respect to payment made to various Doctors and Hospitals u/s.194J of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). The Revenue ....
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....s professional/technical services shall at the time of credit of such sum or making of payment make deduction of tax at source. 11. Now we find that first ingredient for attracting section 194J is that the person making the payment to the payee should be responsible for making the payment. In this case we find that the assessee company has no responsibility for making payments to the hospitals and Doctors. The responsibility to make payments is that of the employees who since they are individuals do not fall under the ken of section 194J. As the facts of the case clearly indicate that the assessee in this case has made payment on behalf of these employee, it cannot be said that there was any responsibility fastening on the assessee....
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....ability of TDS on them. In the present case before us the medical facility bills are not raised on the assessee company. The assessee company has no liability of making payment to them on its own. The payment is made of the sanctioned amount to the employee directly to the hospitals/Doctors. Hence the assessee company on its own has no obligation to pay hospitals/Doctors. Hence it cannot be said that liability to deduct tax at source as envisaged under section 194J fastens on the assessee on the facts and circumstances of the case. The CBDT Circular cited by the learned CIT(Appeals) is totally on a different content and is not at all applicable on the facts of the case. 14. We further note that another plea of the learned counsel o....