M/s. BANK OF AMERICA, MUMBAI v. DCIT (TDS) -II(2), MUMBAI

ITA 231/MUM/2007 | 2000-2001
Pronouncement Date: 22-02-2010 | Result: Dismissed

Appeal Details

RSA Number 23119914 RSA 2007
Assessee PAN AAACB1537G
Bench Mumbai
Appeal Number ITA 231/MUM/2007
Duration Of Justice 3 year(s) 1 month(s) 13 day(s)
Appellant M/s. BANK OF AMERICA, MUMBAI
Respondent DCIT (TDS) -II(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted L1
Tribunal Order Date 22-02-2010
Date Of Final Hearing 06-05-2010
Next Hearing Date 06-05-2010
Assessment Year 2000-2001
Appeal Filed On 09-01-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B: MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SHRI R.S. PADVEKAR (JM) I.T.A NO. 231/MUM/2007 ( ASSTT.YEAR : 2000-01) BANK OF AMERICA APPELLANT EXPRESS TOWERS NARIMAN POINT MUMBAI 400 021 PAN : AAACB1537 G V/S. DY. COMMISSIONER OF INCOME-TAX (TDS) II(2) RE SPONDENT CHARNI ROAD MUMBAI APPELLANT BY :SHRI. SUMANT CHADHA RESPONDENT BY :S/SHRI. PEEYUSH JAIN/S.S. RANA/ PRABHAT JHA(D.R) : O R D E R : PER R.S. PADVEKAR J.M THIS APPEAL IS FILED BY THE ASSESSEE BANK CHALLENG ING THE IMPUGNED ORDER OF THE LD CIT(A)- XXX MUMBAI DATED 15.3.2002 AND THIS APPEAL IS ARISING OUT OF THE ORDER PASSED U/S. 201(1) R.W.S 192 OF THE I.T. ACT. 2. THE ASSESSEE HAS TAKEN TWO FOLLOWING EFFECTIVE G ROUNDS IN THE APPEAL : 1. THE LEARNED ASSESSING OFFICER AND THE CIT(A) HA S ERRED IN INCLUDING THE NOTIONAL INTEREST ON THE REFUNDABLE D EPOSITS PROVIDED BY THE APPELLANT TO THE LANDLORDS OF THE HOUSES RENTED FOR PROVIDING ACCOMMODATION TO THE EMPLOYEE IN THE FAIR RENTAL V ALUE FOR THE PURPOSE OF COMPUTING PERQUISITE VALUE UNDER RULE 3( A). 2. WITHOUT PREJUDICE TO THE RIGHTS OF THE ASSESSEE TO CHALLENGE THE ORDERS ON MERITS IT WOULD BE APPRECIATED THAT SECT ION 192(1) CASTS AN OBLIGATION ON THE EMPLOYER TO WITHHOLD THE TAXES TH AT WOULD BE CALCULATED ON THE ESTIMATED INCOME OF THE ASSESSEE UNDER THE HEAD SALARIES. THE RESPONSIBILITY OF HAVING HIS INCOME ASSESSED STILL LIES WITH THE EMPLOYEE. I.T.A 231/MUM/2007 2 3. THERE IS A DELAY OF 1695 DAYS IN FILING THE PRES ENT APPEAL. IN THIS CASE THE A.O PASSED THE ORDER U/S. 201(1) R.W.S. 192 OF THE I.T. ACT 1961 DT. 13.2.2001 RAISING THE DEMAND OF RS. 2 14 28 550/- FOR THE A.Y. 2000-01. THE ASSESSEE CHALLENGED THE SAID ORDER BEFORE THE LD C IT(A). THE LD CIT(A) DECIDED THE ASSESSEES APPEAL VIDE ORDER DT. 15.3.2 002 GIVING PART RELIEF. THE ASSESSEE FILED THE APPEAL IN THE TRIBUNAL ON 9.1.20 07 CHALLENGING THE IMPUGNED ORDER OF THE LD CIT(A). AS PER PROVISION S OF SECTION 253(3) OF THE ACT THE ASSESSEE SHOULD HAVE FILED THE APPEAL WITH IN 60 DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS CO MMUNICATED TO HIM. IN OTHER WORDS WITHIN 60 DAYS FROM THE DATE OF RECEIP T OF THE ORDER. THE ASSESSEE HAS FILED THE AFFIDAVIT EXPLAINING THE DE LAY FOR FILING THE PRESENT APPEAL IN THE TRIBUNAL. IT IS STATED IN THE AFFIDA VIT THAT THE ORDER OF THE LD CIT(A) MUMBAI DT. 15.3.2002 WAS RECEIVED BY THE A SSESSEE IN MARCH 2002. IT IS FURTHER STATED THAT THEY FILED THE APPEAL AGA INST THE ORDER OF THE CIT(A) BUT INADVERTENTLY THE OFFICE BOY OF THE ASSESSEE B ANK FILED THE APPEAL IN THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (TDS) II (2) MUMBAI ON 8/5/2001 INSTEAD OF FILING IT WITH THE R EGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI. APART FROM THE REASONS GIVEN ABOVE IN THE AFFIDAVIT NOTHING IS STATED AND FILED ON RECORD EX CEPT FILING THE COMPILATION OF BUNCH OF CASE LAWS. 4. WE HAVE HEARD THE PARTIES. THE LD COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THERE WAS A MISTAKE ON THE PART OF THE ASSESSE E BY INADVERTENTLY FILING THE APPEAL IN THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (TDS) II (2) MUMBAI INSTEAD OF FILING THE SAME IN THE OF FICE OF THE REGISTRAR OF THE INCOME TAX APPELLATE TRIBUNAL MUMBAI. THE LD COUN SEL REFERRED TO THE XEROX COPY OF THE FORM NO. 36 AND SUBMITTED THAT ON THE F ORM NO. 36 WHICH IS THE APPEAL MEMO THERE IS ACKNOWLEDGEMENT BY THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (TDS) II (2) MU MBAI AND THE SAID APPEAL WAS FILED ON 8.5.2001. HE THEREFORE PLEADED THAT THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING THE PRESENT APPEAL AND H ENCE THE APPEAL MAY BE CONDONED. HE ALSO RELIED ON THE FOLLOWING PRECEDEN TS : 1) VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL VS. S HANTARAM BABURAO PATIL & OTHERS (2002) 253 ITR 0798 (S.C.) I.T.A 231/MUM/2007 3 2) COLLECTOR LAND ACQUISITION VS. MST. KATIJI AND OTHERS 167 ITR 0471 (SC); 3) DR. (MRS. SUDHA S. TRIVEDI APPELLANT VS. THE INCOME TAX OFFICER 31 SOT 0038 (MUM); 4) STERLITE INDUSTRIES (INDIA) LTD. VS. ADDITION AL CIT/JOINT CIT 2006- 102 TTJ 0053 (MUM); 5) SHRI P KOTEESWARAN B. KARISALPATTY MUTHUMM AICKANPATTY OMALUR (TK) VS. ASST. CIT 2007 TIOL 214 IT AT (MAD); 6) EDITH WILKINS HOPE FOUNDATION (KNOW KNOWN AS HOP E KOLKATA FOUNDATION) VS. DIRECTOR OF INCOME TAX (EXEMPTION) KOLKATA 2007-TIOL-165-ITAT- KOL 7) ASST. CIT VS. S.A. BUILDERS (P.) LTD. 2004-(091 )-TTJ-0399-(CHD). 5. PER CONTRA THE LD D.R. VEHEMENTLY OPPOSED FOR CONDONING THE INORDINATE DELAY IN FILING THE PRESENT APPEAL BY TH E ASSESSEE BANK. THE LD D.R. ALSO SERIOUSLY DISPUTED THE XEROX COPY OF FORM NO. 36 WHICH SHOWS THE STAMP OF THE OFFICE OF ASSISTANT COMMISSIONER OF INCOME T AX CIRCLE (TDS) II (2) MUMBAI. IT IS FURTHER ARGUED THAT PRESUMING THE AP PEAL MIGHT HAVE BEEN FILED INADVERTENTLY IN THE ASSTT. COMMISSIONER OF I.T. (T .D.S.) BUT IT CANNOT BE SAID THAT THE FEES ALSO WAS NOT PAID AS THE ASSESSEE IS REQUIRED TO PAY THE APPEAL FEE THE SAME SHOULD HAVE BEEN PAID ON THE DATE OF FILING OF THE APPEAL ALLEGEDLY IN THE OFFICE OF THE ASST. COMMISSIONER O F I.T. (T.D.S.) OR PRIOR TO SAID DATE. HE THEREFORE PLEADED THAT REASONS GIV EN BY ASSESSEE BANK IS SELF MADE STORY AND HENCE INORDINATE DELAY IN FILING TH E PRESENT APPEAL SHOULD NOT BE CONDONED. 6. WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE R ECORD. THERE IS NO DISPUTE IN THIS CASE THAT THE APPEAL IS TIME BARRE D BY 1695 DAYS. THERE IS ALSO NO DISPUTE ABOUT THE FACT THAT THE ORDER OF TH E LD CIT(A) WHICH IS CHALLENGED IN THIS APPEAL WAS RECEIVED BY THE ASSES SEE BANK SOMEWHERE IN THE MONTH OF MARCH 2002 ( NO SPECIFIC DATE OF RECEI PT OF THE APPEAL IS MENTIONED IN AFFIDAVIT). THE ASSESSEE BANK IS A FO REIGN BANK HAVING THE BASE IN THE USA. THE ASSESSEE WAS ALSO REPRESENTED BY T HE QUALIFIED CHARTERED ACCOUNTANT. IT IS SOMETHING STRANGE THAT BY ALLEG ED INADVERTENT MISTAKE THE I.T.A 231/MUM/2007 4 ASSESSEES STAFF FILES THE APPEAL IN THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (TDS) II (2) MUMBAI AND THERE IS NO FURTHER ENQUIRY EITHER BY THE ASSESSEE BANK OR ITS CHARTERED ACCOU NTANT FATE OF THE APPEAL. MOREOVER THE BENCH ASKED THE LD COUNSEL TO PRODUCE THE COPY OF THE ACKNOWLEDGEMENT HAVING THE ORIGINAL STAMP OF THE OF FICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (TDS) II (2) MU MBAI BUT HE EXPRESSED HIS INABILITY. THE BENCH ALSO ASKED THE LD COUNSEL THAT WHEN THE APPEAL FEE IS PAID IN THIS CASE ?. HE SUBMITTED THAT THE APPEAL F EE OF RS. 10 000/- WAS PAID ON 12.12.2006 . THE EXPLANATION GIVEN BY THE ASSESSEE FOR INORDI NATE DELAY IN THE FILING THE PRESENT APPEAL IS NOT AT ALL CONVINC ING. PRESUMING THAT THE OFFICE STAFF OF THE ASSESSEE BANK INADVERTENTLY FILED THE APPEAL IN THE WRONG OFFICE BUT AT-LEAST THE ASSESSEE COULD HAVE PAID THE TRI BUNAL FEES ON THE ALLEGED DATE OF FILING THE APPEAL MEMO IN THE OFFICE OF THE ACIT CIRCLE (TDS) II (2) MUMBAI AND IT CANNOT BE SAID THAT AS THE ASSESSEE W AS NOT AWARE THAT THE TRIBUNAL FEE IS REQUIRED TO BE PAID FOR FILING THE APPEAL IN THE TRIBUNAL WHICH WAS PAID ON 12.12.2006. THE LD COUNSEL HAS RELIED ON THE PLETHORA OF THE DECISIONS BUT IN OUR OPINION WHEN THE EXPLANATION OFFERED BY THE ASSESSEE ITSELF IS UNBELIEVABLE FOR THE REASONS DISCUSSED A BOVE AND THE PRECEDENTS RELIED ON BY THE LD COUNSEL ARE NOT HELPFUL TO THE ASSESSEE AS ADMITTEDLY IN THOSE CASES THE FACTS PERTAINING TO THE EXPLANATI ON WERE NOT IN DISPUTE. EVEN APPLYING THE RULE OF THE HUMAN PROBABILITY TH E EXPLANATION OFFERED BY THE ASSESSEE BANK IS NOT ACCEPTABLE ON FACTS. IN O UR OPINION THE ASSESSEE HAS FAILED TO EXPLAIN REASONABLE CAUSE FOR INORDINATE D ELAY IN FILING THE PRESENT APPEAL AS PER PROVISIONS OF SECTION 253(2) OF THE I .T. ACT. WE THEREFORE DECLINE TO CONDONE THE INORDINATE DELAY OF 1695 DA YS IN FILING THE PRESENT APPEAL. 7. IN THE RESULT ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND DAY OF FEBRUARY 2010. SD/- SD/- (R.S. SYAL) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ON THIS 22ND DAY OF FEBRUARY 2010. I.T.A 231/MUM/2007 5 :US COPY TO: 1. APPELLANT 2. RESPONDENT 3.THE CIT(A)- XXX MUMBAI 4.THE CIT TDS MUMBAI 5.THE DR B BENCH MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR ITAT MUMBAI. I.T.A 231/MUM/2007 6 US DATE INITIALS 1. DRAFT DICTATED ON 17/2/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 18/2/10 -------- ------ SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----