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Facts
The assessee's appeals against orders for AY 2012-13, 2014-15, and 2015-16 were dismissed by the CIT(A) due to delay in filing. The assessee claimed the intimation under Section 143(1) was never received, and they only became aware of the demand when a notice under Section 245 was served much later. The delay was argued to be 75 days from the date of communication of demand.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal without properly considering the condonation of delay. Relying on High Court precedent, the Tribunal found that by asking for submissions on merit, the CIT(A) had impliedly allowed the condonation of delay. The Tribunal also noted conflicting entries in the CPC intimation regarding the deduction under Section 80P(2)(d) and followed coordinate bench decisions.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal without condoning the delay, and whether the deduction u/s 80P(2)(d) was wrongly disallowed despite conflicting entries in the intimation.
Sections Cited
254(1), 80P(2)(d), 143(1), 143(3), 245, 154
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Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER:
These three appeals by same assessee are directed against the separate orders of learned Commissioner of Income Tax (Appeals) [ld CIT(A)] for Assessment Years (AY) 2012-13, 2014-15 and 2015-16. In all years, the certain facts are common, the assessee has raised common grounds of appeal
in all three years, thus, on the appeals were clubbed together, heard and are decided by common order to avoid the conflicting decisions. For discussion of fact, appeal for AY 2012-13 is treated as lead case. The assessee in appeal for Assessment Year 2012-13 has raised following grounds of appeal. 1. “The Ld. CIT(A) erred in not condoning the delay in filing the appeal and not considering the merits of the case.
2. The Ld. CIT(A) erred in confirming the action of Ld AO of disallowing the deduction u/s 80P(2)(d) vide intimation u/s 143(1).
, 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 3. The Ld. CIT(A) has erred in confirming the action of Ld AO of not allowing the deduction u/s 80(P)(2)(d) without providing any reasons. The Appellant craves leave to add, amend, supplement, alter and/or delete any of the above Grounds of Appeal
2. Brief of the case are that assessee-Ganadhiraj Co-op Housing Society, filed its return of income Assessment Year 2012-13 on 06/12/2012 declaring income of Rs. 5,96,469. Return of income was processed by Central Processing Centre (CPC), Bangalore vide intimation dated 16/05/2013 by making certain adjustment. The CPC while making adjustment, not allowed the deduction claim under Section 80P 2(d). The assessee filed before CIT(A) on 11/10/2023. The assessee while filing appeal, in column No. 15 of form No. 35 contented that assessee came to know about intimation dated 16/05/2013 only on 30/07/2023 when demand for seven assessment years including of AY 2012-13, was served. As intimation under Section 143(1) was never communicated to assessee the assessee obtained copy of the order / intimation of CPC, which was provided to the assessee along with letter dated 03/07/2023, thus, there is delay of 75 days from the date of communication of demand. The assessee contented for condonation of delay in filing appeal. The Ld CIT(A) dismissed the appeal of the assessee as unadmitted by rejecting contention of assessee for condoning the delay. The Ld CIT(A) while rejecting the contention of delay noted that intimation under Section 143(1) is usually deliver by email to taxpayers on email ID within few days of passing of intimation. The assessee claimed that intimation dated 16/05/2013 was deliver to it after 10 years. Such statement is after thought on the part of assessee. It was further held that it is duty and responsibility of every taxpayer that after filing income tax return they should , 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 regularly track its process whether it has been treated as valid or not or process under Section 143(1) or not. The intimation is dated 16/05/2013 and the appeal is filed after the delay of 3760 days. There is long delay, it is without any reasonable cause and in no can be condoned. The appeal was dismissed limine being unadmitted. Further aggrieved the assessee as filed present appeal before Tribunal.
We have heard the submission of learned authorised representative (ld.AR) of the assessee and the learned Senior departmental (Sr DR) for the revenue. The Ld. AR. of the assessee submits that return of income for the AY 2012-13 was processed under section 143(1) of the Act on 16/05/2013. Copy of such intimation, which was not served on the assessee and it was obtained by assessee when demand notice under section 245 dated 03/07/2023 for seven assessment years was served on the assessee. In the return of income, the assessee claimed deduction under section 80P of the Act of Rs. 5,96,469/-. In fact, it was allowed by CPC, copy of intimation of CPC placed on record. The copy of intimation was provided to the assessee along with letter dated 03/07/2023 and the assessee immediately filed appeal, though it was delayed by 75 days from the date of intimation under section 245 of the Act. The Ld. CIT (A) has not issued any show cause notice for seeking submission of assessee on the issue of delay. Rather, Ld. CIT (A) sought clarification whether any rectification under section 154 against the intimation under section 143(1) is passed after filing appeal or whether any regular assessment under section 143(3) of the Act has been passed for present year or subsequent to filing that appeal or conclusion thereof and, if intimation there was given to assessee as 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 per proviso to section 143(1)(a) of the Act before making adjustment. Copy of such show cause notice issued by ld CIT(A) is placed on record. The assessee made compliance of such notice. Thus, admittedly there was no show cause on the issue of condonation of delay by Ld. CIT(A). Not seeking response of assessee on such issue itself shows that delay was impliedly condoned by Ld. CIT(A). The Ld. AR submits that almost on similar set of facts Hon’ble Jurisdiction High Court in Stride Multitrade Private Limited Vs ACIT [2021] 133 taxmann.com 282 (Bombay) held that when Ld. CIT(A) asking the petitioner (assessee) to furnish ground wise written submission on the grounds of appeal
, it would mean that condonation of delay application has been allowed by Ld. CIT(A). The Ld. CIT(A) dismissed the appeal by assessee in limine without giving any opportunity or seeking any explanation, is not valid. The Ld. AR submits that action of Ld. CIT(A) is liable to be set aside.
4. On merit, the Ld. AR. reiterate that once in the intimation under section 143(1) of the Act no adjustment was made, at Serial No. 22 of intimation deduction under section 80P(2)(d) is allowed, therefore, appeal of assessee is liable to be succeeded on merit. The Ld. AR. of assessee submitted that case for AY 2014- 15 & 2015-16 are identical. The ld AR of the assessee further submits that coordinate bench of Mumbai Tribunal in Chheda Heights Co-operative Housing Society Vs ITO in & 3462/mum/2024 dated 31.12.2024, it has been held that prior to AY 2021-22, such adjustment could be made within the scope of section 143(1). Similar view was taken in Chanderlok Co-operative Society Vs ITO in dated 28.06.2024. Copy of decisions are placed on record.
, 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 5. On the other hand, Ld. Sr. DR for the revenue supported the order of Ld. CIT(A). The Ld. Sr DR for Revenue for submits that there was delay of seven years in AY 2015-16, eight years in AY 2014-15 and ten years in AY2012-13, in filing appeal before ld CIT(A). The assessee has not explained the delay in filing the appeal in a proper manner. The assessee is relying on self-serving story that intimation under section 143(1) of the Act was not received by assessee. No supporting evidence is filed by assessee. Thus, the delay in filing appeal before Ld. CIT(A) may not be condone and the appeal of assessee in all the years are liable to be dismissed in limine.
We have considered the rival submission of both the parties and gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied by Ld. AR. by the assessee. First, we shall consider the delay in filing appeal before ld CIT(A), if it was liable to condone or not and / or the appeal of the assessee was impliedly admitted by not issuing specific show cause notice on the issue of delay. The ld AR of the assessee vehemently argued that intimation under section 143(1) was never communicated or served on the assessee either through email or in physical form and that the assessee came to know about adverse order against them, when notice under section 245 was served on assessee in July 2023 and that after obtaining copy of the order/ intimation of CPC, the assessee filed appeal. It is also the contention of ld AR of the assessee that there was only 75 days of delay in filing such appeal before ld CIT(A), which ought to have been condoned. We find that such facts were clearly mentioned in column -15 of Form-35 that intimation under section 143(1) was not served. In our view, the ld CIT(A) in such circumstances either , 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 ought to have obtained report from the jurisdictional AO and a specific submission on such issue from assessee. No such exercise was carried out by ld CIT(A). Admittedly, the ld CIT(A) sought written submissions of the merit of the alleged additions. We find that Hon’ble Jurisdiction High Court in Stride Multitrade Private Limited Vs ACIT (supra) held that when Ld. CIT(A) asking the petitioner (assessee) to furnish ground wise written submission on the grounds of appeal
, it would mean that condonation of delay application has been allowed by Ld. CIT(A). We find the assessee has filed affidavit of one of its members who is also authorised signatory and stated all such facts on oath. On considering the overall facts and circumstances of the case, we find that when the ld CIT(A) has not expressly asked the assessee to explain the alleged delay, it was impliedly considered to be allowed as per the decision of Jurisdictional High Court. We are conscious of well know principal of condonation of delay that when technical consideration and cause of substantial justice are kept against each other, cause of substantial justice may be preferred. Thus, keeping in view of the facts that there is no melafide or intentional delay in filing appeal before ld CIT(A), rather due to the facts explained hereinabove, the order of ld CIT(A) on dismissing the appeal assessee is set aside.
7. Now adverting to the merits of the cases. We find that there are order of CPC, that is at Serial No. 22, the deduction under section 80P(2)(d) is allowed and at serial No.27 it has not been allowed, thus there is conflicting order/ adjustment which is not liable to be sustained. We further find that coordinate bench of Mumbai Tribunal in Chheda Heights Co-operative Housing Society Vs
ITA No. 898, 899 & 900/MUM/2025 AY: 2012-13, 2014-15 & 2015-16 ITO in & 3462/mum/2024 dated 31.12.2024, it has been held that prior to AY 2021-22, such adjustment could be made within the scope of section 143(1). Similar view was taken in Chanderlok Co-operative Society Vs ITO in dated 28.06.2024. Thus, respectfully following the decisions of coordinate bench the appeal of the assessee is allowed.
Considering the facts that we have allowed lead appeal in AY 2012-13, therefore following the principal of consistency, the appeal for AY 2014-15 and 2015-16 is also allowed with similar directions.
In the result, all the appeals for AY 2012-13, 2014-15 & 2015-16 are allowed.
Order announced in open court on 28 March, 2025.