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Income Tax Appellate Tribunal, ‘A’ BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SHRI ANIKESH BANERJEE
Mrs. Mudda Shamala, Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER Assessment Year : 2015-16 Mrs. Mudda Shamala, The Assistant #17, Shankar Nilaya, Commissioner of 8th Main Road, Income Tax, Sadashivanagar, Circle – 6[3][1], Bengaluru – 560 080. Bengaluru. Vs. PAN: AHWPS7582E APPELLANT RESPONDENT Assessee by : Shri Narendra Sharma, A.R. Revenue by : Shri K. Sankar Ganesh, D.R. Date of Hearing : 02-02-2023 Date of Pronouncement : 21-03-2023 ORDER PER ANIKESH BANERJEE, JUDICIAL MEMBER
The instant appeal of the assessee is directed against the order of the Ld. Commissioner of Income Tax (A), NFAC, Delhi {in brevity the CIT(A)}, order passed u/s. 250 of the Income Tax Act, 1961 (in brevity the Act), order dated 06.12.2022 related to A.Y. 2015-16. The impugned order was emanated from the order of the Ld. Assistant Commissioner of Income Tax, Circle -6(3)(1), Bangalore (in brevity the AO), order passed u/s. 143(3) of the Act, order dated 06.12.2017.
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The assessee has taken the following grounds:- “
1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
2. The learned CIT[A] erred in law and on facts in dismissing the appeal of the Appellant by refusing to condone the delay of 744 days in filing the appeal before the learned Commissioner of Income-tax [Appeals], as per Section 249[3] of the Act without appreciating that the appellant was pursuing a bonafide alternate remedy and thus, prevented by sufficient cause in not filing the appeal within time under the facts and in the circumstances of the appellant's case. 2.1 The learned CIT[A] is not justified in holding that the delay between 31/01/2018 [i.e. 30 days from the receipt of the assessment order] and 16/04/2018 [i.e. the date of filing the application u/s 264] of 46 days remains unexplained without appreciating that the time limit for filing the application u/s 264 of the Act was one year from the date on which the order was received by the appellant and thus, the period of 46 days pointed out by the learned CIT[A] as delay in filing the appeal stands explained under the facts and in the circumstances of the appellant's case. 2.2 The learned CIT[A] is not justified in holding that the delay between 13/03/2020 [i.e. the date of the order passed u/s 264 of the Act] and 29/05/2020 [i.e. the date of filing the first appeal] of 77 days remains unexplained without appreciating that on account of the Covid-19 pandemic related disruptions, the period of delay from 15/03/2020 until 29/05/2022 has to be excluded having regard to the judgement of the Hon'ble Supreme Court vide orders passed in Suo Moto Writ Petition [Civil] No.3 of 2020 dated 10/01/2022 and thus, the period of 77 days pointed out as delay by the learned CIT[A] also stands explained under the facts and in the circumstances of the appellant's case.
3. Without prejudice to the above, the learned CIT[A] A.O. is not justified in not disposing off the grounds raised by the appellant with regard to the addition of Rs. 49,81,635/- being the variance between the turnover reported in service tax returns and turnover reported in the profit and loss account under the facts and in the circumstances of the appellant's case.
4. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG. the appellant denies herself liable to be charged to interest u/s. 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled.
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5. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.” 3. Brief facts of the case are that in this case the assessment order has been framed u/s 143(3) of the Act vide order dated 6.12.2017 and the addition was made at Rs.49,81,635/-. The assessee in this case instead of filing appeal against this order before ld. CIT(A), she has opted to file petition u/s 264 of the Act on 16.4.2018 before ld. Principal CIT and awaiting for his order. The said petition filed by the assessee u/s 264 of the Act was rejected on 13.3.2020. Consequent to this, the assessee filed appeal before the ld. CIT(A) on 29.5.2020. Thus, there was delay of 744 days in filing the appeal before ld. CIT(A). However, the ld. CIT(A) has not admitted the appeal of the assessee and dismissed the same in limine without considering the above facts. Hence, the assessee filed present appeal before this Tribunal praying for the condonation of delay.
The ld. Counsel for the assessee drew our attention to page No.16 of the ld. CIT(A) which is reproduced as below:
7.2 I have gone through the assessee’s submission, it is seen that the appeal was to be filed on or before 30.01.2018. The assessee filed application u/s. 264 before Pr. Commissioner of Income Tax on 16.04.2018.
In argument the ld. AR placed that the assessee is time barred for filing the appeal by 744 days. The AR argued that the assessee is within the relaxation granted by the Hon’ble Supreme Court in suomoto Writ Petition (C) No. 3 of 2020 dated 10.01.2022. But only 77 days remains unexplained after getting relaxion order. But such days was explained before the appellate authority. It was explained that the assessee under the wrong guidance of the consultant had filed the appeal before the ld. PCIT u/s. 264 of the Act. After rejection of petition u/s. 264, the assessee immediately
Page 4 of Mrs. Mudda Shamala, Bangalore filed before the ld. CIT(A). The issue was explained, but the ld. CIT(A) had not considered the submission of the assessee. The ld. AR of the assessee requested to remit back the issue before the ld. CIT(A) to consider on merit.
The ld. DR argued but not made any strong objection against the submission of the ld. AR.
We heard rival submissions and relied on the documents available in the record. In written submissions, the assessee placed the ‘List of Dates’ at APB, page-3 which are reproduced as below. 1. The Learned Assessing officer concluded the Assessment by passing an order of assessment under section 143 [3] of the Act, wherein he 06/12/2017 determined he determined the total income of the appellant at Rs.2,69,13,560/- as against the returned income by the appellant of Rs.2,19,31,930/-. 2. The Learned assessing officer in the impugned order of assessment has made a solitary addition of Rs. 49,81,635/- being variance of - Turnover as per Income tax return and service Tax Return. 3. Upon the advice of the Chartered Accountant, the Appellant field an application under section 16/04/2018 264 of the Act before the Hon'ble Principal Commissioner of Income Tax-Range 6. 4. The Hon'ble Principal Commissioner of Income Tax Rejected the application filed by the appellant under section 264 of the Act, by holding that the (earned assessing officer has 13/03/2020 applied his mind and has formed an opinion and proceeded to pass the assessment order and consequently declined to interfere and rejected the application made by the appellant under section 264 of the Act. 5. Thereafter, the appellant preferred a statutory appeal before this Hon'ble authority against the 29/05/2020 order passed by the learned assessing officer under section 143[3] of the Act 06/12/2017, in pursuit of justice.
Page 5 of Mrs. Mudda Shamala, Bangalore 7.1 In the factual matrix, the assessee had never unattended the impugned order of assessment. Under wrong advice, the revision was filed before the ld. PCIT. Finally, the assessee instituted the appeal petition before the ld. CIT(A) on 29.5.2020. In our opinion, the assessee has been pursuing alternative remedy by filing petition before ld. Principal CIT u/s 264 of the Act and since the time limit to file petition before ld. Principal CIT u/s 264 of the Act was one year from the date on which the order in question was communicated to the assessee or the date on which she otherwise came to know of it earlier. Admittedly, in this case the assessee has filed the revision petition u/s 264 of the Act before ld. Principal CIT within this time limit and the assessee has been waiting for the final outcome of the revision petition filed before the ld. Principal CIT and the ld. Principal CIT dismissed the assessee’s petition only on 13.3.2020. Thereafter, the assessee took time to file appeal before the ld. CIT(A) and it was actually filed before the ld. CIT(A) on 29.5.2020. Being so, the short delay in filing the appeal before ld. CIT(A) i.e. on 29.5.2020 is very marginal. In other words, the assessee ought to have filed appeal before the ld. CIT(A) on or before 12.4.2020 and it was actually filed on 29.5.2020. Thus, there was short delay in filing the appeal before the ld. CIT(A), if we reckon the date available to file appeal before ld. CIT(A) was from the date of decision on revision petition of assessee by ld. Principal CIT i.e. 13.3.2020. Accordingly, we are of the opinion that there is a good and sufficient reason in filing the appeal belatedly before ld. CIT(A). Accordingly, we condone the delay in filing the appeal before ld. CIT(A) and direct the ld. CIT(A) to admit the appeal for adjudication. Accordingly, after admission of appeal of assessee, we remit the issue to the file of ld. CIT(A) to decide the same on merits in accordance with law.
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In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 21st March, 2023.