The Assistant Commissioner Of Income Tax (TDS), Circle-1(1), Bangalore V. M/s Bank Of India , Bangalore

MA 109/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3724 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 22-10-2019

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER [ M P NO. 10 9 /B ANG /20 20 (IN ITA NO.1546/BANG/2018)] (ASSESSMENT YEAR: 20 13 - 14 ) THE DCIT (TDS), CIRCLE 1(1), BENGALURU. APPLICANT VS. M/S. BANK OF INDIA , CANTONMENT BRANCH, NO.49, JYOTHI MAHAL, ST. MARKS ROAD, BENGALURU 560 001. RESPONDENT A SSESSEE BY : NONE REVENUE BY : SHRI. PRIYADARSHI MISHRA,JCIT DATE OF HEARING : 0 6 / 1 1 /20 20 DATE OF PRONOUNCEMENT : 09 / 1 1 /20 20 O R D E R THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE REVENUE AND FOR THE SAKE OF READY REFERENCE, WE REPRODUCE THE CONTENTS OF THE MP WHICH ARE AS UNDER: 1. IN THE CASE OF M/S BANK OF INDIA ( TAN: BLRB00968C), BENCH B OF ITAT PASSED AN ORDER DATED 10.04.2019 FOR AY 2013-14 DISMISSING THE APPEAL FILED BY REVENUE STATING THE FOLLOWING , 'WE FOUND THAT THE DEFECT MEMO WAS ISSUED BY THE ITAT REGISTRY ON 28.06.2018 THAT THE REVENUE HAS WRONGLY FILLED UP THE COI.NO.2 IN FORM 36 AND FORM 35 IS NOT FILED/NOT FILED IN DUPLICATE AND ALSO STATEMENT OF FACTS BEFORE CIT(A) WAS ALSO NOT FILED.' 'IN SPITE OF ISSUING DEFECT NOTICE, TILL TODAY NO ACTION HAS BEEN TAKEN BY THE REVENUE TO RECTIFY THE DEFECT AS POINTED OUT BY THE REGISTRY THEREFORE WE ARE OF THE OPINION THAT THE REVENUE IS NOT INTERESTED IN PROSECUTING THE APPEAL BY RECTIFYING THE MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 2 OF 7 DEFECT AND ACCORDINGLY CONSIDERING THE CONDUCT OF THE REVENUE IN NOT RECTIFYING THE DEFECTS IN SPITE OF ISSUING DEFECT NOTICE IN JUNE 2018 AND WE DISMISS THE GROUNDS OF APPEAL OF THE REVENUE. 1. IT IS CLARIFIED HERE THAT: A. THIS OFFICE HAD SENT A LETTER DATED 11.05.2018 TO THE ASSISTANT REGISTRAR, ITAT STATING , 'COPIES OF FORM 35 ALONG WITH STATEMENT OF FACTS BEFORE THE CIT (A) ARE FORWARDED HEREWITH IN TRIPLICATE FOR YOUR NEEDFUL ACTION PLEASE'. THE SAME HAS BEEN ACKNOWLEDGED BY ITAT WITH ITS SEAL. COPY OF THE SAME IS ENCLOSED. B. THE DEFECT MEMO ISSUED ON 28.06.2018 WAS ADDRESSED TO THE FOLLOWING ADDRESS, ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), BENGALURU IT IS CLEAR THAT THE DEFECT MEMO WAS NOT ADDRESSED TO THIS OFFICE NAMELY THE OFFICE OF ASST. COMMISSIONER OF INCQME TAX, TDS, CIRCLE 1(1) AND THEREFORE THE CORRECT AO WAS NOT IN RECEIPT OF THE SAME. 3. FROM THE ABOVE FACTS, IT IS EVIDENT THAT THIS OFFICE WAS NOT IN RECEIPT OF THE DEFECT MEMO AND THEREFORE DID NOT HAVE THE OPPORTUNITY TO MAKE THE REQUIRED RECTIFICATIONS. ONLY LACK OF COMMUNICATION WAS THE REASON FOR THE TDS AO FOR NOT TAKING CORRECTIVE MEASURES. THEREFORE, IT IS REQUESTED THAT THIS APPLICATION FOR RECTIFICATION OF ITAT ORDER DATED 10.04.2019 BE ACCEPTED AND THE AO BE GIVEN THE OPPORTUNITY TO RECTIFY THE DEFECT AND SUBSEQUENTLY FOR HONORABLE ITAT TO DECIDE THE MATTER ON THE MERITS OF THE CASE. 2. IN THE COURSE OF HEARING, IT IS SEEN THAT NONE APPEARED ON BEHALF OF THE ASSESSEE ALTHOUGH ON THE LAST DATE OF HEARING I.E. ON 09.10.2020, MR. H. DHANANJAY PAI, CA AND AR OF THE ASSESSEE APPEARED BEFORE THE TRIBUNAL AND THEREFORE, THE PRESENT DATE OF HEARING I.E. 06.11.2020 WAS KNOWN TO LEARNED AR OF THE ASSESSEE MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 3 OF 7 BUT IN SPITE OF THIS, HE CHOSE NOT TO APPEAR BEFORE THE TRIBUNAL ON THIS DATE OF HEARING AND THERE IS NO REQUEST FOR ADJOURNMENT ALSO AND THEREFORE, WE PROCEED TO DECIDE THIS MP OF THE REVENUE EX- PARTE QUA THE ASSESSEE. 3. IN COURSE OF HEARING, LEARNED DR OF THE REVENUE SUBMITTED THAT THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL ON THIS BASIS THAT THE REVENUE HAS NOT RECTIFIED THE DEFECTS. IN THIS REGARD, IT WAS HIS SUBMISSION THAT THE DEFECT MEMO ISSUED BY THE TRIBUNAL ON 28.06.2018 WAS ADDRESSED TO ACIT, CIRCLE 1(1), BENGALURU BUT THE APPELLANT IN THE PRESENT APPEAL WAS ACIT, TDS CIRCLE 1(1), BENGALURU AND THEREFORE, THE DEFECT MEMO WAS NOT ISSUED TO THE PROPER AUTHORITY AND AS A RESULT, THE DEFECT MEMO DID NOT REACH TO THE APPELLANT I.E., ACIT, TDS CIRCLE 1(1), BENGALURU AND HENCE, HE HAD NO OCCASION TO RECTIFY THE DEFECT POINTED OUT BY THE TRIBUNAL AND THEREFORE, IN THE INTEREST OF JUSTICE, THIS TRIBUNAL ORDER SHOULD BE RECALLED TO AFFORD OPPORTUNITY TO THE APPELLANT TO CURE THE DEFECT. HE ALSO SUBMITTED THAT THERE IS ONLY ONE DEFECT IN THE APPEAL FILED BY THE REVENUE AND THIS DEFECT IS THIS THAT COLUMN NO.2 OF THE FORM NO.36 FILED BY THE REVENUE WAS NOT PROPERTY FILLED UP AND REGARDING REMAINING DEFECTS POINTED OUT BY THE TRIBUNAL IN THE DEFECT MEMO, HE SUBMITTED THAT THOSE DEFECTS WERE ALREADY RECTIFIED BY THE APPELLANT REVENUE EVEN BEFORE THE ISSUE OF THE DEFECT MEMO BY THE TRIBUNAL AND IN THIS REGARD, HE SUBMITTED A MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 4 OF 7 PAPER BOOK CONTAINING 24 PAGES AND POINTED OUT THAT ON PAGE NO.18 OF THIS PAPER BOOK IS THE LETTER WRITTEN BY ACIT, TDS CIRCLE 1(1), BENGALURU ON 11.05.2018 ADDRESSED TO THE ASSISTANT REGISTRAR, ITAT, BENGALURU AND ON PAGE 19 OF THE PAPER BOOK IS THE COPY OF THE ANOTHER LETTER OF THE SAME DATE WRITTEN BY ACIT, TDS CIRCLE 1(1), BENGALURU, ADDRESSED TO ASSISTANT REGISTRAR, ITAT, BENGALURU, AND HE FURTHER POINTED OUT THAT BOTH THESE LETTERS WERE DULY RECEIVED BY THE TRIBUNAL ON THE SAME DATE I.E., 11.05.2018 AS PER THE SEAL OF THE TRIBUNAL APPEARING ON BOTH THE LETTERS AND ALONG WITH THESE LETTERS, COPY OF GROUNDS OF APPEAL FILED BEFORE CIT(A), COPY OF ORDER PASSED BY THE AO UNDER SECTION 201(1) AND 201(1A) OF THE IT ACT, 1961 WERE ALSO SUBMITTED BEFORE THE TRIBUNAL AND HENCE, OTHER DEFECTS POINTED OUT BY THE REGISTRY OF THE TRIBUNAL WERE ALREADY BEEN RECTIFIED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DR OF THE REVENUE AND WE FIND THAT THE APPEAL WAS FILED BY THE REVENUE ON 04.05.2018 AND DEFECT MEMO WAS ISSUED BY THE TRIBUNAL ALONG WITH FIRST NOTICE FOR HEARING OF THE APPEAL BEING THE HEARING FIXED FOR 05.09.2018. WE ALSO FIND THAT THIS ACKNOWLEDGMENT OF NOTICE IS ALSO ADDRESSED TO ACIT, CIRCLE 1(1), BENGALURU, ISSUED ON 28.06.2018 AS PER WHICH, DATE OF HEARING WAS FIXED ON 05.09.2018. AS PER THE ORDER SHEET ENTRIES IN THE APPEAL FOLDER, WE FIND THAT ON 05.09.2018, SMT. NANDINI DAS, ADDITIONAL CIT APPEARED ON BEHALF MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 5 OF 7 OF THE REVENUE AND IT MEANS THAT THE ACKNOWLEDGMENT / NOTICE ISSUED BY THE TRIBUNAL FOR FIXING THE HEARING OF THE APPEAL ON 05.09.2018 WAS VERY MUCH RECEIVED BY THE AO APPELLANT AND THEN ONLY, ADDITIONAL CIT, DR APPEARED BEFORE THE TRIBUNAL ON THIS DATE I.E. ON 05.09.2018. HAVING RECEIVED THE NOTICE OF HEARING ISSUED ON THE SAME DATE, THE REVENUE CANNOT TAKE THIS STAND THAT DEFECT MEMO ISSUED BY THE TRIBUNAL WAS NOT RECEIVED BY THE APPELLANT REVENUE. WE ALSO FIND THAT ON 03.04.2019 ALSO, WHEN THE APPEAL OF THE REVENUE WAS HEARD BY THE TRIBUNAL, SHRI. T. N. PRAKASH, ADDITIONAL CIT DR APPEARED BEFORE THE TRIBUNAL. UNDER THESE FACTS, WE DO NOT FIND ANY MERIT IN THIS CONTENTION RAISED BY THE REVENUE IN THE MP AND RAISED BY THE DR OF THE REVENUE IN THE COURSE OF HEARING OF THE MP THAT THE DEFECT MEMO ISSUED BY THE TRIBUNAL HAS NOT BEEN RECEIVED BY THE APPELLANT REVENUE. MOREOVER, WE WOULD ALSO LIKE TO OBSERVE THAT THIS IS THE PRIMARY DUTY OF THE APPELLANT WHETHER ASSESSEE OR REVENUE TO FILE AN APPEAL BEFORE THE TRIBUNAL OR ANY AUTHORITY FOR THAT MATTER WHICH IS NOT CONTAINING ANY DEFECT AND THIS SHOULD NOT BE EXPECTED FROM THE TRIBUNAL OR ANY SUCH AUTHORITY THAT THE AUTHORITY WILL EXAMINE AS TO WHETHER THE APPEAL FILED IS DEFECTIVE OR NOT AND THEN INTIMATE THE APPELLANT ABOUT THE DEFECT. ALTHOUGH IN THE INTEREST OF JUSTICE, WE ARE ADOPTING THIS EXTRA PRECAUTION AND INTIMATING THE APPELLANT ABOUT THE DEFECT, IF ANY, IN THE APPEAL FILED BY THE APPELLANT AND IN THE PRESENT CASE MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 6 OF 7 ALSO, SUCH DEFECT WAS NOTIFIED TO THE APPELLANT BY ISSUING A DEFECT MEMO ALONG WITH THIS NOTICE REGARDING THE FIRST DATE OF HEARING FIXED BY THE TRIBUNAL ON 05.09.2018. WE ALSO FIND THAT THE SAID NOTICE AND THE DEFECT MEMO BOTH WERE ISSUED ON THE SAME DATE I.E. 28.06.2018 ADDRESSED TO THE SAME AUTHORITY I.E. ACIT, CIRCLE 1(1), BENGALURU, AND WE HAVE ALREADY NOTED THAT ON THIS DATE OF HEARING I.E. ON 05.09.2018, SMT. NANDINI DAS, ADDL. CIT, DR, APPEARED WHICH IMPLIES THAT THE NOTICE OF HEARING ISSUED BY THE TRIBUNAL HAS BEEN RECEIVED BY THE APPELLANT REVENUE AND THEREFORE, THIS ARGUMENT HAS NO MERIT THAT THE DEFECT MEMO WAS NOT RECEIVED BY THE APPELLANT REVENUE. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THERE IS NO MERIT IN THE MP FILED BY THE REVENUE AND WE DISMISS THE SAME. 5. IN THE RESULT, MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- ( BEENA PILLAI ) JUDICIAL MEMBER (A. K. GARODIA) ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 09/11/2020 /NS/* MP NO. 109/BANG/2020 (IN ITA NO.1546/BANG/2018) PAGE 7 OF 7 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE