BANG OVERSEAS LTD.,,MUMBAI vs. DCIT, CIR-2(1)(1), MUMBAI

The assessee has challenged the order of CIT(A) on the ground ld.CIT(A) has failed to condone the delay in filing the appeal before the first appellate authority and had not given sufficient opportunity of hearing. The assessee has also challenged the disallowance of Rs. 17,51,249/- u/s. 36 (1)(va) of the Act, towards employees contribution to PF & ESIC deposited after the due date prescribed under the relevant Act, (A.Y.2018-19) Bang Overseas Ltd Vs. DCIT, CIR-2(1)(1) but before filing of the return of income made by the AO/CPC and upheld by the ld.CIT(A).

The brief facts are that the assessee had filed its return of income dated 21.02.2019 declaring total income at Rs. Nil and book profit u/s 115 JB at Rs. Nil and the same was processed u/s. 143(1) of the Act. The AO/CPC vide intimation dated 10.05.2019 passed u/s 143(1)(a) of the Act, made an addition/disallowance of Rs. 17,51,249/- being employees contribution to PF & ESIC deposited after the due date prescribed under the relevant Acts, but before filing of the return of income. The assessee was in appeal before the first appellate authority and ld.CIT(A) vide order dated 27.03.2023 dismissed the appeal filed by the assessee for the reason that the assessee has filed the said appeal with the delay of 108 days and the same was not condone by the ld.CIT(A). The assessee is in appeal before us challenging the impugned order of the ld.CIT(A).

The ld.AR for the assessee contended that the ld.CIT(A) has failed to consider the reasons stated by the assessee for the delay in filling the appeal before the first appellate authority. The ld. AR further stated that the assessee was not given sufficient opportunity to represent its case before the ld.CIT(A) thereby, violating the principles of natural justice. The ld.AR rayed that the assessee may be given one more opportunity to present its case before the first appellate authority as the issue in appeal was not decided on merits of the case. The ld.DR on the other hand, controverted this fact and vehemently opposed to remanding the issue back to the ld. CIT(A), for the reason that the assessee was given sufficient opportunity before the lower authorities. Ld. DR relied on the order of the ld. CIT(A).

(A.Y.2018-19) Bang Overseas Ltd Vs. DCIT, CIR-2(1)(1) 5. We have heard the rival submissions and perused the material available on record. The issue in appeal is the disallowance made by the AO/CPC towards employees contribution deposited belatedly after the due date prescribed under the relevant Acts, but nevertheless before filing of the return of income. It is observed that the ld. CIT(A) has not decided this issue in the appeal filed by the assessee for the reason that the assessee has filed the appeal with a delay of 108 days and the reason stated by the assessee for the said delay was according to ld. CIT(A) was not a sufficient cause for the said delay. From the submission of the assessee it is evident that the delay was attributable to the previous tax consultant engaged by the assessee and also partly was due to covid pandamic. The first appellate authority has rejected the reasons specified by the assessee and had dismissed the appeal without getting into the merits of the case. From the facts of the case, we are of the considered opinion that the assessee may be extended with one more opportunity to present its case before the first appellate authority by adhering to the principles of natural justice. We therefore, remand this issue back to the file of the ld.CIT(A) for condoning the delay in filling the appeal and to decide the issue on the merits of the case.

In the result, the appeal filed by the assessee is allowed for statistical purposes.