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Income Tax Appellate Tribunal, DELHI BENCH ‘C’ NEW DLEHI
Before: SHRI C.M. GARG & SHRI PRADIP KUMAR KEDIA
PER C.M. GARG, J.M. This is an appeal filed by the assessee against the order dated 25.06.2018 passed by learned Cit(a)-1, Noida for the assessment year 2014-15 on the following grounds : “1. That on the facts and in the circumstances of the case and in law, the order passed by the Ld. CIT(A) under section 250 of the Income-tax Act 1961 [“the Act] is bad in law, incomplete, cryptic, laconic, against the equity and fair play and against the doctrine of principles of natural justice and is liable to be quashed for the following reasons:
a) That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in passing the order in utter haste and that too without providing reasonable opportunity of being heard to the Appellant. b) That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in passing a non-speaking order. c) That in law,the Ld. CIT(A) erred in passing an unsigned copy of the order.
That on the facts and in the circumstances of the case and in law, Ld. CIT(A)/ Ld. AO grossly erred in making addition of Rs. 14,68,80,049 being total receipts from Jubilant Biosys Limited under section 80(IB)( 13) read with section 80IA(10) of the Act without providing any cogent reasons.
3. That on the facts and in the circumstances of the case and in law, Ld. CIT(A)/ Ld. AO failed to observe that for the year under consideration, provisions of section 80IB( 13) read with section 801 A( 10) of the Act had no application as no deduction was claimed u/s 80IB(8A) of the Act by the Appellant.
That on the facts and in the circumstances of the case and in law, Ld. CIT(A)/ Ld. A grossly erred in disallowing Rs.6,15,154 being the employees contribution towards provident fund (EPF) and employees state insurance (ESI) deposited beyond due dates prescribed under respective statutes, without appreciating that aforesaid contributions were paid before due date of filing of the return of income under the Act.
That on the facts and in the circumstances of the case and in law, Ld. CIT(A)/ Ld. AO while disallowing the claim for EPF and ESI grossly erred in not following the decision of the Hon’ble Supreme Court in the matter of CIT v. Vinay Cement Ltd. [2007] 213 CTR 268.
That the Ld. AO grossly erred in initiating penalty under section 271 (1 )(c) of the Act. That the above grounds of appeal are without prejudice to each other. That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal.”
2. The appellant has filed this appeal with a delay of 176 days, for which a condonation application is filed on record, which is being disposed of as under : Application for condonation of delay:
We have heard the arguments of both the sides on the application of appellant seeking condonation of delay of 176 days in filing this appeal. Reiterating the submissions made in the said application, ld. counsel submitted that the order of the ld. CIT(A) dated 25.06.2018 was brought to the knowledge of the appellant for the first time only on 12.01.2021. Ld. counsel further pointed out that after receiving certified copy of the order on 14.01.2021, the appellant was advised by the tax consultant to file the appeal alongwith condonation application. Ld. counsel submitted that since there was no adjudication in the first appellate order and only grounds were mentioned, therefore, the assessee was given consultation by the tax consultants/Chartered Accountant and ultimately decided to file the appeal before the Tribunal. Ld. counsel further explained that during this process, delay of 176 days was caused in filing the appeal before the Tribunal and the reason for delay is bonafide. Therefore, the delay may kindly be condoned and the appeal may kindly be admitted for hearing. Ld. counsel has placed reliance on various judgments including the judgment of Hon’ble Supreme Court in the case of Collector Land Acquisition vs Mst. Katiji & Ors., 167 ITR 471 (SC).
4. Replying to the above, ld. CIT/DR drawing our attention towards impugned appellate order, submitted that there is no deliberation, adjudication or consideration by the ld. CIT(A) as per grounds raised by the assessee in form No. 35 and only ground No. 1 & 2 have been noted and thereafter, ld. CIT(A) has put his signature without elaborating as to whether the appeal is allowed or dismissed. Therefore, the appeal of the assessee is not maintainable before the Tribunal. 5. Placing rejoinder to the above, ld. counsel submitted that the assessee prayed to the ld. CIT(A) to hear ground No. 1 & 2 and to grant relief, but the ld. CIT(A) has neither allowed nor dismissed the grounds of appeal
, which means the assessee is still empty handed and therefore, every assessee has all rights to invoke his right to file appeal before the Tribunal. Therefore, the appeal may kindly be admitted for hearing after condoning the delay.
6. On careful consideration of the rival submissions, we are of the considered view that the ld. CIT/DR has not disputed the fact that the assessee has got certified copy of the impugned first appellate order on 14.01.2021. From bare perusal of the impugned order dated 25.06.2018, it is also clearly discernible that the ld. CIT(A) has not decided the appeal and merely after mentioning the ground No. 1 & 2 of assessee signed the order which is a cryptic order passed without consideration of grievance of the assessee. In this situation, if some time is lapsed in consultation with legal professionals and thereafter the assessee decided to file appeal before the Tribunal, then in our humble understanding, the delay of 176 days in filing the appeal before the Tribunal is explained by sufficient cause, as the order itself is non-speaking and confusing and thus, the assessee took time to decide further legal strategy to get relief from the competent forum, i.e. Tribunal.
In the case of Collector Land Acquisition vs Mst. Katiji & Ors (supra), their Lordships speaking for the Apex Court has held that a litigant does not stand to benefit by lodging an appeal late and refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.
In view of the above, we are of the considered opinion that the assessee does not get any benefit in filing the appeal with delay except an extension of litigation in the form of condonation petition. In the present case, assessee has successfully demonstrated a bonafide cause for filing the appeal with delay of 176 days before the Tribunal. Therefore, application of the assessee is allowed, the delay of 176 days is condoned and the appeal is admitted for hearing.
As already noted, a perusal of the impugned first appellate order reveals that the ld. CIT(A) has passed a cryptic order without addressing and considering even the grievance of the assessee raised in the grounds of appeal
in Form No.
35. The ld. CIT(A) only reproduced ground No. 1 & 2 in the impugned order and signed the same without stating even the points for determination, the decision thereon and the reason for such decision, as required u/s. 250(6) of the Income-tax Act. Therefore, such an order cannot be appreciated. We, therefore, are of the considered opinion that the matter deserves to be remanded back to the file of ld. CIT(A) for deciding the appeal on merits by way of speaking order in accordance with law after giving reasonable opportunity of being heard to the assessee. We order accordingly.
10. In the result, the appeal of the assessee is allowed for statistical purposes.