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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Fakhri Co-operative VersuS Commissioner of Housing Society Ltd. Income Tax 422, Matharpakhadi Road, (Appeals) Mazgaon, NFAC, Delhi. Maharashtra-400010. PAN: AAAAF1078N Appellant Respondent Appellant/Assessee by : Sh. Murtaza Quresh Ghandiali & Ms. Sabeena Darukhanawal, AR Respondent/Department by : Ms. Mini Vinod, DR Date of hearing : 29/05/2023 Date of pronouncement : 29/05/2023 ORDER NARENDER KUMAR CHOUDHRY, J.M: This Assessee/Appellant herein has preferred this appeal against the order dated 12.01.2023 impugned herein passed by Ld. Commissioner of Income Tax (Appeals) / NFAC, Delhi {in short ‘Ld. Commissioner’} u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) for AY 2013-14.
Fakhri Co-operative Housing Society Ltd. 2. In this case, the Appellant earned interest from Co- operative and other Banks and therefore, filed its return of income for the AY 2013-14 on 22.08.2013 which was processed by CPC and vide intimation dated 12.11.2014 under section 143(1) of the Act, the amounts of Rs. 2,08,071/- and Rs. 50,000/- have not been considered under section 80P(2)(c)(ii) and consequently disallowed.
Being aggrieved, the Appellant on dated 21.11.2014 filed rectification request to the CPC. The CPC vide rectification order dated 08.01.2015 under section 154 of the Act, gave an option to the appellant to file an online rectification request. Subsequently in response/compliance said order dated 08.01.2015, the Appellant filed its response dated 12.02.2019. Thereafter the Appellant also lodged a grievance to the CPC for granting of relief on the basis of one judgment passed by Hon’ble Bench of the Tribunal at Mumbai. In response to the grievance dated 29.11.2019, the CPC replied as follows: “Dear taxpayers, on verification of your return, it is found that tax/income has been computed as per Income Tax Act, 1961. There is no discrepancy from our end.”
3.1 The Appellant again filed a grievance to the CPC on dated 27.01.2020 for relief on the same ground. The CPC again vide reply dated 27.01.2020 addressed the grievance of the appellant by replying as under:
Fakhri Co-operative Housing Society Ltd. “Dear taxpayers, on verification of their returns, it is found that tax/income has been computed as per Income Tax Act, 1961 .There is no discrepancy from CPC end”.
The assessee being aggrieved against the original rectification order dated 08.01.2015 passed under section 154 of the Act preferred first appeal before the Ld. Commissioner on dated 22.09.2021. The Ld. Commissioner vide impugned order rejected the appeal of the Appellant in limine on the point of limitation. Relevant parts of order are clubbed and reproduced herein for brevity and ready reference: “That in this case an appeal is sought to be initiated after an inordinate delay of 2414 days beyond the prescribed time limit as per sub-section (2) of section 249 of the Act. The appellant has not adduced any reasonable cause which prevented it from filing an appeal within the 30 days time limit which ended on 25.02.2015 and even thereafter for more than 2414 days. Unless and until it is demonstrated that there was sufficient cause that prevented the appellant from exercising its legal remedy of filing an appeal within the prescribed period of 30 days, the delay thereafter cannot be condoned without their being compelling grounds as advocated by the Hon’ble Courts. From the facts of the case, it is clear that the statutory right to appeal which was vested with the appellant was not exercised within the stipulated time under section 249(2). Thus, there is a case of delay due to deliberate inaction on the part of the appellant. As no sufficient cause has been shown under section 249(3) of the Act for the appellants failure to file the appeal within the prescribed period of limitation under section 249(2) of the Act r.w.s 5 of the Limitation Act and hence, the delay of 2414 days in filing of the appeal is not condoned and appeal sought to be instituted belatedly is hereby rejected.”
Fakhri Co-operative Housing Society Ltd. 5. The appellant being aggrieved is in appeal before Tribunal.
Heard the parties and perused the material available on record. It appears in para-2 of the impugned order as noted by the Ld. Commissioner that the original rectification order under section 154 of the Act was passed by the CPC on dated 08.01.2015 by which an option was given to the Appellant to file an online rectification request, which the appellant belatedly on dated 12.02.2019 exercised and subsequently on dated 29.11.2019 on the basis of an judgment of the ITAT, Mumbai Bench, filed another grievance to CPC, which was also addressed by the CPC vide reply dated 29.11.2019, however, the Appellant again preferred to raise a grievance to the CPC on dated 27.01.2020 on the same ground, which was also addressed by the CPC on dated 27.01.2020 itself whereby the appellant was duly informed: “That on verification of its return, it is found that tax/income has been computed as per the Income Tax Act, 1961. There is no discrepancy from CPC end.”
6.1 I observe that infact, instead of challenging immediately the initial/original rectification order dated 08.01.2015 passed under section 154 of the Act by filing first appeal before the Ld. Commissioner, the Appellant may be on bonafide belief or inadvertent advice continued with filling of grievances before CPC and once CPC passed last order on 27.01.2020, the Appellant on 22.09.2021 preferred to challenge the original
Fakhri Co-operative Housing Society Ltd. order dated 08.01.2015 u/s 154 of the ACT. In fact cause of action though started immediately after original/first order dated 08.01.2015 u/s 154 of the Act itself but still continued upto passing of last order dated 27.01.2020 as the Appellant may by before wrong forum but continued with the proceedings against order dated 08.01.2015 and therefore original order merged with last order.
6.2 Last order u/s 154 of the Act was passed on 27.01.2020 and the appellant filed first appeal on 22-09-2011 therefore delay of 604 days occurred. Admittedly from March 2020, the entire Nation was on halt due to Covid-19 and the Hon’ble Apex Court in M.A. No. 665/2021 in SMW(C) No. 3/2020 decided on 23.09.2021, even otherwise waived/exempted the period, if any lapsed for filing of the appeals during the Covid- 19 i.e. March 2020 to 02.10.2021, which also covered delay period as involved in this case. For ready reference, relevant part of order is reproduced below: “I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021. {Highlighted by me for clarity} II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation
Fakhri Co-operative Housing Society Ltd. remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.
III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and 10 (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
IV. The Government of India shall amend the guidelines for containment zones, to state. “Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.” As a sequel to disposal of MA No.665/2021, pending interlocutory applications, including the applications for intervention/impleadment, also stand disposed of.”
6.3 Hence, in view of the aforesaid analyazations and the judgment of the Hon’ble Apex Court referred to above, I am inclined to set-aside the impugned order and to direct the Ld. Commissioner to decide the appeal of the assessee on merit while taking into consideration all the orders passed by the CPC qua grievance raised by the Appellant, suffice to say by affording reasonable opportunity of being heard to the assessee. Case is remanded accordingly.
Fakhri Co-operative Housing Society Ltd. 7. In the result, appeal filed by the Appellant stands allowed for statistical purposes. Order pronounced in the open court on 29thday of May, 2023.