Loading judgment…
Facts
The appellant filed an appeal before the ITAT challenging the dismissal by the NFAC due to alleged delay in filing. The appellant argued there was no delay and provided an affidavit explaining the circumstances of filing the appeal. The Ld. Addl.CIT(A) had dismissed the appeal without adjudicating on merits, citing an inordinate delay of 143 days.
Held
The Tribunal held that there was no delay in filing the appeal, or if there was a delay, sufficient cause was provided. The Bench decided to condone the delay and adjudicate the appeal on merits, referencing a Bombay High Court ruling that appellate authorities cannot dismiss appeals solely on grounds of delay. The appeal was remanded to the Ld. Addl.CIT(A) for decision on merits.
Key Issues
Whether the appeal was delayed, and if so, whether the delay should be condoned to decide the appeal on merits.
Sections Cited
143(1), 245, 246A, 143(3)
AI-generated summary — verify with the full judgment below
Detected automatically from the text. The count shows how many other judgments on BharatTax rely on the same authority.
Income Tax Appellate Tribunal, Mumbai “E” Bench, Mumbai.
Before: Smt. Beena Pillai (JM) & Shri Omkareshwar Chidara (AM)
In the above captioned appeal, the appellant filed an appeal before the ITAT with the following grounds of appeal :-
1. On facts and circumstances of the case and in law, the Ld. National Faceless Appeal Centre (NFAC) has erred in dismissing the appeal of the Assessee, stating that there was a delay in filing the appeal, whereas there was no delay in filing the appeal.
2. On facts and circumstances of the case and in law, the Ld. NFAC) has erred in confirming the Addition of the CPC of Rs. 69,14,884/- without considering the response filed by the Assessee before the CPC.
3. On facts and circumstances of the case and in law, the Ld. NFAC) has erred in confirming the Addition of the CPC of Rs. 28,63,782/- on account of inconsistency in the gratuity amount appearing in the return of income and audit report.
4. On facts and circumstances of the case and in law, the Ld. NFAC) has erred in confirming the Addition of the CPC of Rs. 34,52,644/- on account of inconsistency in the bonus amount appearing in the return of income and audit report.
5. On facts and circumstances of the case and in law, the Ld. NFAC has erred in confirming the addition of the CPC of Rs. 61,698/- on account of 2 inconsistency in the capital asset amount appearing in the return of income and audit report.
6. On facts and circumstances of the case and in law, the Ld. NFAC) has erred in confirming the Addition of the CPC of Rs. 5,36,760/- on account of inconsistency in the leave encashment amount appearing in the return of income and audit report.
7. Without prejudice to the above the adjustment made under section 143(1) of the Act by the CPC is without giving an opportunity- for hearing hence the adjustment is bad in law hence the NFAC, may be directed to delete the addition which is not in accordance with law.
The Appellant craves leave to add, amend, alter or delete any of the above grounds of appeal.
During the hearing proceedings before the ITAT, the Ld. AR of the appellant has submitted that the Ld. Additional Commissioner of Income Tax (Appeals) [Addl.CIT(A)] has dismissed their appeal without adjudicating the issues on merits. The Ld. Addl.CIT(A) did not condone the delay, as it was opined that the delay of 143 days was inordinate and as there is no proper explanation for delay in filing the appeal, the same was dismissed by the first appellate authority. The Ld. AR of the appellant has pleaded that there is no delay in filing the appeal and within the due date, the appeal was filed and accordingly an affidavit was filed by the Accountant of the appellant, who looks after the taxation matters. The same is responded below :- “I, Ms. Rornita Coutinho, an adult Indian inhabitant, aged 33 years, daughter of Rajiv Coutinho residing at House No. 532, Eden House, Christian Ali Marg, Near Syndicate Bank Vadavali, Pali, Papdi Vasai Thane 401207 do hereby solemnly declare as under:
1. 1. I say that I am an employee-accountant of Tribhovandas Bhimji Zaveri (B) Ltd. since 27th September 2014 and 1 am looking after tax compliance and administration.
2. I say that, I on behalf of the Tribhovandas Bhimji Zaveri (B) Ltd., received an email on romita.coutinho@tbzoriginal.com dated December 18, 2021 for an adjustment of refund under section 245 of the Income-tax Act, 1961 (Act). The said email did not contain an order passed under section 143(1) of the Act.
3. I say that, it was only vide email dated May 24, 2022 that I received the Order passed under section 143(1) of the Act dated 18/12/2021.
3 4. I say that, within thirty days of the email dated May 24, 2022 i.e., receipt of the order under section 143(1) of the Act dated 18/12/2021, Tribhovandas Bhimji Zaveri (B) Ltd. has filed an appeal before the National Faceless Appellate Centre (NFAC)/ Commissioner of Income-tax (Appeals) (CIT(A). The said appeal under section 246A of the Act was filed on June 09, 2022.
I say that, there was no delay in filing an appeal before the NFAC/ CIT(A).
6. I say that whatever is stated in the application is true to the best of my knowledge and I believe the same to be true.”
Hence, it was submitted that the appeal should be decided on merits.
The Ld. DR supported the order of Ld. Addl.CIT(A).
5. After hearing both sides, it is decided that there is no delay in filing of appeal before the Ld. Addl.CIT(A) after considering the circumstances mentioned in the affidavit. Even if there is delay, the sufficient cause for the same was also mentioned in the affidavit. The Bench is satisfied that the delay, if any, should be condoned and the appeal is to be adjudicated on merits. Even otherwise also, Hon'ble Bombay High Court in the case of Premkumar Arjundas Luthra HUF (69 Taxman.com 407)(Bom)has held that the appellate authorities under Income Tax Act cannot dismiss the appeal on the ground of delay and the case has to be decided on merits. With these observations, the appeal is remanded to the file of Ld. Addl.CIT(A) with a direction to decide the issues on merits after giving sufficient opportunity to the appellant.
The appeal is allowed for statistical purposes.
Order pronounced in the open Court on 17/03/2025.