MORADABAD BAREILLY EXPRESSWAY LIMITED ,MUMBAI vs. DY. COMMISSIONER OF INCOME TAX -14(1)(1), MUMBAI

6. On the facts and circumstances of the case and in law, the Learned AO has erred in raising a consequential tax demand of Rs. 1,090.

7. On the facts and circumstances of the case and in law, the Learned AO has erred by not granting full interest under section 244A of the Act.”

3. Brief facts of the case are that assessee is a public limited company engaged in the business of developing Moradabad-Barielly section of NH-24 from KM 148.000 to KM 262.000 in the state of Uttar Pradesh under NDHP phase-III on Design, Build, Finance, Operate, Transfer (DBFOT basis). Assessee filed its return of income on 30.10.2019 which was revised on 27.08.2020. Assessee had made a claim of credit of TDS at Rs. 27,53,60,106/- in its return out of which Rs. 11,47,334/- was inadvertently claimed. Thus, the claim was revised by withdrawing this amount so as to match with Form 26AS. However, while processing the return u/s. 143(1) by Centralised Processing Centre of the Department, Bengaluru (CPC). ld. AO granted short credit of TDS to the extent of Rs. 13,35,43,997/-. Assessee contended that it has duly offered to tax, the entire income corresponding to the aforesaid TDS credit in its return. Details of TDS claimed by the assessee and reconciliation so made which were furnished before the Ld. CIT(A) are extracted below:

4. Assessee filed all the relevant documentary evidences and explanation in the course of first appellate proceedings. While disposing the appeal, ld. CIT(A) noted that there is a delay of more than 30 days in filing the appeal u/s. 249(2). He noted that the appeal was filed after a delay of 239 days. He further noted that assessee has not acknowledged the delay in filing the appeal in Form-35 at row no. 14 where against the question of whether there is delay in filing the appeal, assessee had stated “No”. Thus, in absence of application requesting condonation of delay and failure to provide any reasons for the same, appeal of the assessee was dismissed in limine. 4.1 Before us, Ld. Counsel for the assessee submitted that the impugned intimation u/s. 143(1) issued by CPC is dated 29.12.2020 which was issued during the period of pandemic of COVID-19. Assessee asserted that the delay ought to have been condoned by taking cognizance of the order of Hon’ble Supreme Court dated 10.01.2022 in its suo-moto writ petition (c) no. 3 of 2020 and circular no. 10/2021 dated 25.05.2021 issued by Central Board of Direct Taxes (CBDT), whereby period pertaining to pandemic of COVID 19 was stated to be ignored while computing the limitation. Assessee had furnished its appeal on 28.09.2021 which also fell during the period for which Hon’ble Supreme Court had granted the benefit for excluding this period.

5. Considering the above, we are in agreement with the submission made by the Ld. Counsel whereby the delay which fell during the period of pandemic of COVID 19 as directed by the Hon’ble Supreme Court to be excluded for the purpose of computation of limitation. Accordingly, the delay at the first appellate stage ought to have been condoned by the ld. CIT(A) to take up the matter for its meritorious adjudication instead of disposing it in limine. 5.1 In the given set of facts, we condone the delay at the first appellate stage and in the interest of justice and fair play remit the matter back to the file of ld. CIT(A) for meritorious adjudication on the grounds of appeal raised by the assessee at the first appellate stage by passing a speaking order, after taking into consideration, submissions of the assessee by giving reasonable opportunity of being heard. Assessee is also directed to be diligent in making all its submissions so as to comply with the notices for the hearing for effective and expeditious disposal of the appeal. Accordingly, grounds raised by the assessee are allowed for statistical purposes.