THE COLABA CENTRAL CO-OP CONSUMERS WHOLESALE AND RETAIL STORES LTD,MUMBAI vs NATIONAL E-ASSESSMENT CENTRE, DELHI (AO), MUMBAI

Income Tax Appellate Tribunal, MUMBAI BENCH “C”, MUMBAI

Before: SHRI KULDIP SINGH & SHRI GAGAN GOYAL

For Appellant: Shri Sunil Bhandari, C.A

For Respondent: Shri R.A. Dhyani, D.R

Present for: Assessee by : Shri Sunil Bhandari, C.A., Revenue by : Shri R.A. Dhyani, D.R. Date of Hearing : 21 . 12 . 2022 Date of Pronouncement : 23 . 12 . 2022 O R D E R

Per : Kuldip Singh, Judicial Member:

The appellant, M/s. The Colaba Central Co-op Consumers Wholesale and Retail Stores Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 10.08.2022 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2018-19 on the grounds inter-alia that :- 2 M/s. The Colaba Central Co-op Consumers Wholesale and Retail Stores Ltd.

“1. On the facts and in law, the Ld. CIT(A) erred in dismissing appeal for delay of 105 days in filing of appeal while disposing of appeal by his order dated 10/08/2022. Hon'ble CIT(Appeal) failed to take cognizance of the order dated 23/09/2021 in MA 665 of 2021 in SMW(C) No. 3 of 2020 passed by Honourable Supreme Court whereby direction is given to the effect that in computing period of limitation for any suit appeal, application or proceeding, the period from 15/03/2020 till 02/10/2021 shall stand excluded. These direction were issued under COVID-19 protocol. Assessment order was served on 25/03/2021 and appeal was filed on 07/09/2021 and as such it is covered by the order of Hon'ble Apex Court.

Without prejudice Ld CIT(A) ought to have condoned delay of 74 days (and not 105 days mis calculated by CIT(A)), which was caused due to technical glitches in new IT portal launched by the Department in June 2021 as also COVID_19 restrictions on movement

2. On the facts and in law, Appellant being a Consumer cooperative Society, ought to have been allowed deduction of Rs. 24.62,181/- claimed u/s 80P(2)(d) in respect of interest income earned from Co- operative Banks.”

Briefly stated facts necessary for adjudication of the issues at hand are: the assessee a consumer society carries out the business of counter selling of grocery, vegetables and fruits, household items, medicines etc. at its various branches. During the scrutiny proceedings Assessing Officer (AO) noticed that the assessee has claimed deduction under section 80P2(D) of the Income Tax Act,1961 (for short ‘the Act’) to the tune of Rs.24,62,181/-. After declining the contentions raised by the assessee, the AO disallowed the same and made addition thereof to the total income of the assessee.

Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has dismissed the same on ground of delay of 105 days in filing the appeal on failure of the assessee to show sufficient cause for condonation of delay. Feeling aggrieved with 3 M/s. The Colaba Central Co-op Consumers Wholesale and Retail Stores Ltd. the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing present appeal.

We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.

Bare perusal of the impugned order passed by the Ld. CIT(A) goes to prove that the appeal filed by the assessee has been dismissed only on ground of delay of 105 days in filing the appeal before the Ld. CIT(A).

Undisputedly, the assessee was required to file the present appeal before the Ld. CIT(A) on 24.06.2021 whereas filed the same on 07.09.2021 with the delay of 105 days.

Hon’ble Supreme Court by taking cognizance of the covid 19 pandemic vide miscellaneous application No.665 of 2021 in SMW(C) 3 of 2020 ordered to exclude the period from 15.03.2020 to 02.10.2021. Assessee’s delay of 105 days in filing the appeal before the Ld. CIT(A) is covered as excluded by virtue of the order dated 23.09.2021 (supra) passed by the Hon’ble Supreme Court as such there was no delay on the part of the assessee to file the appeal before the Ld. CIT(A).

Since the Ld. CIT(A) has not decided the appeal filed by the assessee on merits, the impugned order is set aside and case is remanded back to the Ld. CIT(A) to decide on merits by treating 4 M/s. The Colaba Central Co-op Consumers Wholesale and Retail Stores Ltd. the same having been filed within the period of limitation by providing opportunity of being heard.

Resultantly, appeal filed by the assessee is allowed for statistical purposes.

Order pronounced in the open court on 23.12.2022.

THE COLABA CENTRAL CO-OP CONSUMERS WHOLESALE AND RETAIL STORES LTD,MUMBAI vs. NATIONAL E-ASSESSMENT CENTRE, DELHI (AO), MUMBAI