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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI KULDIP SINGH & SHRI GAGAN GOYAL
O R D E R Per : Kuldip Singh, Judicial Member: At the very outset, it is brought to the notice of the Bench that this appeal is filed by the appellant, M/s. Lasons India Pvt. Ltd. (hereinafter referred to as ‘the assessee’) with a delay of 4 days and sought to condone the delay by making application for condonation of delay supported with affidavit on the grounds inter-alia that the impugned order was received by the assessee on its mail on November 30, 2022, which he has forwarded to his tax advisor Shri Krish Desai, Chartered Accountant (CA) of M/s. K.B. Desai & Co., 2 M/s. Lasons India Pvt. Ltd.
Chartered Accountants; that the assessee has received mail from his tax advisor on 06.01.2023 that appeal before the Tribunal is to be filed and he has also advised to file the rectification application against the impugned order; that after necessary formalities the assessee has received grounds of appeal for filing the appeal before the Tribunal on mail on 25.01.2023 and on 26th January 2023 it was holiday; that due to inadvertence the assessee handed over the necessary paper to his employee in the accounts department who could not send the paper to the tax consultant; that delay is neither intentional nor malafide.
2. However, on the other hand, the Ld. D.R. for the Revenue opposed the application for condonation of delay on the ground that the late filing of appeals in this case is apparently malafide due to callous attitude of the assessee and prayed for dismissal of the application.
3. Keeping in view the fact that delay of 4 days is attributed to the employee of the assessee who could not forward paper to the tax consultant to file the appeal in time, which fact is supported with an affidavit and in view of the law laid down by the Honourable Supreme Court in case of Land Acquisition Collector vs. MST Katiji & Others 167 ITR 471 (SC) wherein it is held that “it is on contention of delay that when substantial justice and technical considerations are pitted against each other, the case of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay,” the delay of 4 days in filing the present 3 M/s. Lasons India Pvt. Ltd.
appeal is hereby condoned and present appeal is ordered to be registered and heard today by the Bench.
The assessee by filing the present appeal, sought to set aside the impugned order dated 30.11.2022 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2019-20 on the grounds inter-alia that :- “1. Ground No. 1: Validity of intimation issued u/s 143(1) of the Act-: Section 143(1):
1. 1. On the facts and in the circumstances of the case and in law. the CIT(A) erred in confirming the action of the AO of issuing notice under section 143(1) of the Act contrary to the conditions laid down thereunder.
2. The Appellant prays that the intimation be treated as ab-initio, void, invalid, illegal and bad in law.
2. Ground No.2: Opportunity of hearing: Sections: 143(1) and 154: 1. On the facts and in the circumstances of the case and in law, theCIT(A) erred in confirming the action of the AO in issuing the intimation 143(1) as also passing order under section 154 of the Act without complying with the second proviso to section 143(1)(a) in the former case and section 154(3) of the Act in the latter case.
2. The Appellant prays that it be held that the intimation passed under section 143(1) and rectification order passed under section 154 of the Act without giving any opportunity to the Appellant and as such the same be treated as ab-initio void, invalid, illegal, bad in law and be annulled.
3. Ground No. 3: Violation of Principles of Natural Justice: Sections: 143 (1) as also 154 of the Act: 1. On the facts and in the circumstances of the case and in law, the CIT(A) erred in confirming the action of the AO of issuing the intimation under section 143(1) as also passing order under section 154 of the Act in violation of principles of natural justice. 4 M/s. Lasons India Pvt. Ltd.
The Appellant prays that it be held that the intimation issued as also rectification order were passed without observation of the principles of natural justice as also passed in violation of such principles and as such the same be treated as ab-initio void, invalid, illegal, bad in law and be annulled. 4. Ground No: 4 Disallowance of employees' contribution to provident funds and ESIC: Section: 2(24)(x) r.w.s. 36(1)(va) and 43B:
1. 1. On the facts and in the circumstance of case and in law, the CIT(A) erred in confirming the action of the AO of making disallowance of Rs. 81,11,823/-, being employee's contribution to PF and ESIC without taking into consideration the submissions made by the Appellant.
2. The appellant prays that the disallowance made by the lower authorities be deleted.
5. Ground No.5: Levy of interest: Sections 234A, 234B and 234C of the Act: 1. On the facts and in the circumstances of the case and in law, the the CIT(A) erred in confirming the action of the AO of levying interest u/ss. 234A, 234B and 234C of the Act.
2. The Appellant prays that action of the AO of levy of interest u/ss. 234A, 234B and 234C of the Act be deleted and/or the AO be directed to levy interest in accordance with the provisions of the Act.
6. Ground No.6: General: The Appellant craves leave to add to, alter, amend and or vary all or any of the foregoing grounds of appeal.”
5. Briefly stated facts necessary for consideration and adjudication of the issues at hand are : assessee’s return of income filed for the year under consideration was processed under section 143(1) of the Income Tax Act, 1961 (for short ‘the Act’) by making disallowance of Rs.81,11,823/- towards employees contribution of Provident Fund (PF) and Employees’ State Insurance Corporation (ESIC) under section 36(1)(va) of the Act deposited beyond the 5 M/s. Lasons India Pvt. Ltd.
date prescribed under the Act. The Assessing Officer (AO) also levied penalty under section 234A, 234B & 234C of the Act.
The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has confirmed the addition by dismissing the appeal. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing the present appeal.
Notice sent to the assessee by way of registered post with acknowledgement due (RPAD) received back undelivered with the report that addressee has left the place of his last address without notice. Registry has no other address except given in the record of the Revenue and appeal memo filed before the Tribunal. Keeping in view the fact that the Ld. CIT(A) has passed the order without providing any opportunity of being heard to the assessee, we deem it fit to dispose of the appeal on the basis of material available on record with the assistance of the Ld. D.R. for the Revenue.
We have heard the Ld. D.R. for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon.
Undisputedly disallowance was made by the AO/CPC while processing the return of income filed by the assessee, under section 143(1) of the Act. It is also not in dispute that no notice has been issued by the AO/CPC before making disallowance under section 143(1) of the Act. It is also not in dispute that the assessee has also 6 M/s. Lasons India Pvt. Ltd.
filed the rectification application under section 154 of the Act before the AO which was also dismissed.
In the backdrop of the aforesaid undisputed facts when we examine the impugned order passed by the Ld. CIT(A) it shows that no notice has been issued to the assessee before passing impugned order rather a vague reference in para 1 of the impugned order that “statutory notice under section 250 of the Act was issued online to the assessee” is given. No date has been given on which date the notice was issued and for which date the assessee was called upon to appear. No doubt the Ld. CIT(A) has passed the order on merits but it is fundamental principle of rule of natural justice that before passing any order the assessee must be given adequate opportunity of being heard.
In the interest of substantive justice and to decide the issue once for all and to stop multiplicity of litigation we are of the considered view that the impugned order passed by the Ld. CIT(A) without providing opportunity of being heard to the assessee is not sustainable in the eyes of law, hence hereby set aside and remitted back to the Ld. CIT(A) to decide afresh after providing opportunity of being heard to the assessee.
Consequently appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 27.04.2023.