State Bank of India Vs ITO (ITAT Bangalore)
We observe that as per Form No.36, the order of the CIT(A) was served on the assessee on 19/8/2019 and the appeal has been filed by the assessee before the ITAT on 29/9/2022, which is the delay beyond the period of 60 days. Though there was a Covid-19 issue starting from March 2020, the Hon’ble Supreme Court suo moto writ petition No.03/2020 along with M.P 21/2022 has held that the period from 15/3/2020 till 28/02/2022 shall stand excluded for the purpose of period of limitation as may be prescribed under any general or special laws in respect of quasi judicial and judicial proceedings. Even after excluding the CVOID period still the appeal filed by the assessee is beyond due date as prescribed in the provisions. Even during the period of Covid 19, the ITAT was functioning as well as banking facilities was provided by the bank the assessee’s bank branch. On further observations of the Affidavit cited Supra filed by the assesesse that due to change of Manager of the Branch and the appeal order was not noticed by the manager, hence the assessee could not file appeal within period of limitation is not acceptable. Even in the quantum proceedings, the appeal has been decided against the assessee. In such a situation, the assessee must be well aware of the tax implications upon the assessee. It is the duty of the responsible officer to comply the notices. The books of accounts of the bank is audited by the CA along with the internal auditors also. The assessee cannot escape by giving the reason merely for change of branch manager.
The assessee will not get benefit of sec.273B of the Act. The assessee should be well aware of the statutory provisions and the period of limitation and should pursue its remedies diligently. The assessee cannot expect their appeals to be entertained because they are after all the Bank, notwithstanding the facts that the delay is not sufficiently explained, Hence, the delay is not condoned and the appeal is unadmitted. Accordingly, the appeal of the assessee is dismissed.
FULL TEXT OF THE ORDER OF ITAT BANGALORE
All these four appeals are directed against the common order passed by the CIT(A) dated 21/2/2019 for the assessment year 201112. The issue in all these appeals are regarding levy of penalty u/s 271C of the Act, hence these appeals are heard together and disposed of together in this common order for the sake of convenience.
2. Since the issues raised by the assessee in all these appeals are common except for the figures. The decision in ITA No.330/Bang/2022 shall apply mutatis mutandis in other appeals also. Hence, the grounds raised in ITA No.330/Bang/2022 is reproduced as under:-
“1. The order of Commissioner of Income Tax (Appeals) in upholding penalty levied Rs. 52,746/- by the learned assessing officer under section 271C, in so far it is against the appellant is opposed to law, weight of evidence, facts and circumstances of the Appellant’s case.
2. In view of Decisions of Hon’ble Income Tax Appellate Tribunal, Bangalore in case of State Bank of India, Jigani Branch, Bengaluru Vs. Additional CIT, TDS, Range 3, Bengaluru, ITA no. 1118 to 1172, 1237 and 1238/Balig/ 2019 dated 18.11.2019, this penalty proceedings should be set aside.
3. The Commissioner of Income Tax (Appeals) has grossly erred in upholding the levy of penalty u/s 271C of the Act without appreciating the fact that the appellant had complied with all the provisions of TDS on salaries under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
4. The Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the interpretation of provisions of Sec. 10(5) was debatable under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant did not have mala fide intention in not deducting tax at source on LTC portion of salaries under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to he set aside.
6. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant was under bona fide belief that there is no tax liability on LTC portion paid to employees since the same was exempted from tax u/s 10(5) of the Act (which deals with incomes which do not form part of total income) under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
7. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant was under bona fide belief that there is no tax liability on LTC inasmuch as the appellant was only reimbursing the LTC claim and no TDS was attracted on the same under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
8. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant was under bona fide belief that there is no tax liability on LTC inasmuch as the same methodology was being followed by the appellant for more than 2 decades under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
9. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant was under bona fide belief that there is no tax liability on LTC inasmuch as the appellant was being guided by Indian Bank Association and the appellant had all along been followed the same principle without any change under the facts and circumstances of the case and thereby appellate order sustaining pna1ty is liable to be set aside.
10. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act without appreciating the fact that the appellant had reasonable cause for not deducting impugned tax at source under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
11. Without prejudice to the above, the Commissioner of Income Tax (Appeals) has grossly erred in upholding penalty u/s 271C of the Act and further erred in not considering the appellant’s claim that the appellant was eligible to be he1tered u/s 273B of the Act for having reasonable cause for not deducting impugned tax at source under the facts and circumstances of the case and thereby appellate order sustaining penalty is liable to be set aside.
12. For these and such other grounds as may be raised by the appellant during the course of appellate proceedings, appellant hereby humbly prays before this Hon’ble Tribunal to allow the appeal of the appellant in the interest of equity and advancement of substantial cause of justice in the eyes of law.”
3. At the outset it is observed that there was delay in filing these appeals of the respective branches, the no of days delay in filing the appeal is as under:-
