SMS HOLDINGS (P) LTD.,NEW DELHI vs. ACIT-CPC, BANGALORE

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘G’ NEW DELHI

BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND DR. BRR KUMAR, ACCOUNTANT MEMBER

ITA No.5170/Del/2018 Assessment Year: 2010-11

M/s. SMS Holdings (P) Ltd., Vs. ACIT, CPC, A-77, Swasthya Vihar, Bangalore. Delhi-1100 92

PAN :AABCS7079R (Appellant) (Respondent)

Appellant by S/s. Salil Kapoor, Sumit Lal Chandani & Ms. Ananya Kapoor, Advocates Respondent by Shri H.K.Chaudhary, CIT (DR)

Date of hearing 02.03.2022 Date of pronouncement 17.03.2022 ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER:

This is an appeal by assessee against order dated 31.5.2018 of

learned Commissioner of Income-Tax (Appeals)-8, New Delhi for

assessment year 2010-11.

against disposal of its appeal in limine without condoning the delay.

2 ITA No.5170/Del./2018

impugned assessment year, assessee filed its return of income on

29.09.2010. The return of income filed by the assessee was processed

by Centralized Processing Centre (CPC Bangalore). While processing

the return, assessing officer allowed MAT credit under Section

115JJA of the Act excluding surcharge and education cess. Whereas,

according to the assessee MAT credit has to be computed including,

sur-charge and education cess. Therefore, assessee filed an application

for rectification under Section 154 of the Act, for rectification of the

order. However, the rectification application so filed by the assessee

was rejected by the CPC.

appellate authority belatedly with inordinate delay of 1844 days. Of

course, assessee filed an application seeking condonation of delay.

Not being satisfied with the reason shown by the assessee for

condoning delay, learned Commissioner (Appeals) dismissed

assessee’s appeal in limine without condoning the delay.

view the legal position prevailing at the time of disposal of assessee’s

3 ITA No.5170/Del./2018

rectification application, on legal advise, assessee did not prefer any

appeal before the first appellate authority. However, subsequently,

there was change in legal position by virtue of a decision of Tribunal

in case of Virtusa (India) Pvt. Private Ltd. in ITA No.146/Hyd/2016

dated 04.03.2016 which came to the notice of the assessee in the

month of December 2016, and on the advise of the new counsel the

assessee filed the appeal before learned Commissioner (Appeals).

Thus, he submitted, there was reasonable cause for delay in filing the

appeal. Further, he submitted, subsequently there are various other

decisions of the Tribunal and High Courts, wherein the issue relating

to the computation of MAT credit has been decided in favour of the

assessee. Thus, he submitted, when assessee has a strong case on

merits he should not be debarred from establishing his case on merit

by dismissing the appeal on technical grounds. In support of his

contention, learned counsel for the assessee relied upon a number of

judicial precedents including the landmark decision of the Hon'ble

Supreme Court in case of Collector, Land Acquisition Vs. MST. Katiji

& Ors. ( 167 ITR 471 ) (SC).

4 ITA No.5170/Del./2018

be restored back to learned Commissioner (Appeals) for deciding the

issue on merits.

on record.

learned Commissioner (Appeals) has dismissed the appeal in limine

without going into the merits of the issue. However, considering the

submissions of the assessee and going through the decisions, cited on

the issue of MAT credit, prima facie, we are of the opinion that

assessee has a strong case on merit, hence, deserves to be heard on the

substantive issue of computation of MAT credit whether offer

including or excluding sur-charge and education cess etc. It is now

fairly well settled, when justice and technicalities are pitted against

each other, the courts should always lean in favour of cause of justice

rather than technicalities, unless, there is deliberate lackes and

negligence on the part of the assessee to pursue the cause of justice. In

the facts of the present case, we are of the view that assessee has made

out reasonable cause for delay in filing of appeal. Moreover,

5 ITA No.5170/Del./2018

considering the fact that the assessee may have a strong case on

merits, we are inclined to restore the issue to the file of learned

Commissioner (Appeals) for condoning delay and deciding assessee’s

appeal on merits. Needless to mention, learned Commissioner

(Appeals) must afford reasonable opportunity of being heard to the

assessee before deciding the appeal.

Order pronounced in the open court on 17th March, 2022

Sd/- Sd/- ( DR. BRR KUMAR ) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 17th March, 2022. Mohan Lal