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Income Tax Appellate Tribunal, BANGALORE BENCHES “C”, BANGALORE
Before: Shri George George K, JM & Shri Laxmi Prasad Sahu, AM
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “C”, BANGALORE Before Shri George George K, JM & Shri Laxmi Prasad Sahu, AM ITA No.1001/Bang/2022 : Asst.Year 2014-2015 M/s.Dream Logistics Company The Assistant Commissioner Private Limited of Income-tax, v. G-Floor, Baddi Complex Central Circle 1(1) Bangalore. Near Bus Stand, Yallapur – 581 359 Uttar Kannada. PAN : AACCD3416C. (Appellant) (Respondent) Appellant by : Sri.Narendra Sharma, Advocate Respondent by : Smt.Priyadarshini Baseganni, AddlCIT-DR Date of Pronouncement : 21.11.2022 Date of Hearing : 21.11.2022 O R D E R Per George George K, JM : This appeal at the instance of the assessee is directed against CIT(A)’s order dated 19.02.2022. The relevant assessment year is 2014-2015.
The grounds raised read as follows:-
“1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] erred in law and on facts in dismissing the first appeal by refusing to condone the delay of 68 days due to non-filing of the petition for condonation of delay in filing the appeal before the learned Commissioner of Income-tax [Appeals], as per Section 249[3] of the Act without giving any notice of the proposed dismissal of the appeal on the grounds of delay especially when detailed submissions were made on merits of the disallowances made in the
2 ITA No.1001/Bang/2022. M/s.Dream Logistics Company Private Limited. impugned order on earlier occasions of hearing. 3. Without prejudice to the above, the learned CIT[A] ought to have appreciated that the short delay of 68 days was on account of reasonable cause as the business of the appellant had come to a standstill after the ban in mining of iron-ore in Karnataka and there were no staff to follow up and ensure filing of the appeal within time permitted under the Statute and therefore, the delay in filing the appeal ought to have been condoned. 4. Without prejudice to the above, the learned CIT[A] A.O. is not justified in not disposing off the grounds raised by the appellant with regard to the disallowance of Rs. 2,35,810/- u/s.37[1] of the Act under the facts and in the circumstances of the appellant's case. 5. The learned CIT[A] is not justified in not disposing off the grounds raised by the appellant with regard to tile disallowance of Rs. 45,11,347/- being the interest disallowed u/s.36[iii] of the act under the facts and in the circumstances of the appellant's case. 6. The learned CIT[A] is not justified in not disposing off the grounds that the learned A.O. ignoring the claim for set off of current year business loss amounting to Rs.49,51,547/- returned by the appellant against income from capital gains under the facts and in the circumstances of the appellant's case. 7. The learned CIT[A] is not justified in not disposing off the grounds that ought to have allowed the set-off of the brought forward unabsorbed depreciation of AY 2013-14 amounting to Rs. 75,10,566/- against the remainder of short term capital gains after the set-off of current year's business loss in accordance with the provisions of section 32[2] rws 72[2] of the Act under the facts and in the circumstances of the appellant's case. 8. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies itself liable to be charged to interest u/s. 234-A and 234-B of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 9. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and
3 ITA No.1001/Bang/2022. M/s.Dream Logistics Company Private Limited. the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fee as part of the costs.”
At the very outset, we noticed that the appeal of the assessee was dismissed in limine by the CIT(A) without condoning the delay of 68 days. The CIT(A) observed that the assessee has not filed petition for condonation of delay (though the assessee had filed written submission on merits, the CIT(A) has not adjudicated on the merits).
The learned AR submitted that it was a bonafide mistake in not filing the delay condonation petition before the CIT(A). It was stated that though the appeal was posted for number of times and the assessee had filed detailed written submissions on merits of the additions / disallowances, no deficiency was pointed out for not filing the delay condonation petition. The learned AR has filed an affidavit of the Managing Director of the assessee, wherein it is admitted that there is a delay of 68 days in filing the appeal before the first appellate authority. It is also mentioned that it was bonafide mistake in not filing delay condonation petition. It is stated that the assessee-company was not carrying out any business owing to the ban on mining and the concerned staff member who was handling all the Income-tax related matters in the past had left the services of the assessee. Further, it is stated that the assessee was facing certain criminal cases in connection with mining business of the assessee and complete attention could not be devoted to the Income-tax matters. Therefore,
4 ITA No.1001/Bang/2022. M/s.Dream Logistics Company Private Limited. the assessee missed out on noting the delay in filing the appeal before the CIT(A) and consequently, the condonation petition could not be filed.
The learned Departmental Representative supported the order of the CIT(A).
We have heard rival submissions and perused the material on record. The appeal was posted for hearing on 11 occasions, The assessee had filed detailed written submissions, pursuant to the hearing notices with reference to the additions / disallowances made by the A.O. During the hearing before the CIT(A), there was no deficiency pointed out for not filing an application for condonation of delay. Admittedly, there is a delay of 68 days in filing the appeal before the first appellate authority and the assessee has not filed petition for condonation of delay. Therefore, the CIT(A) cannot be faulted in dismissing the appeal in limine by not condoning any delay in filing the appeal. The assessee’s Managing Director, however, has filed an affidavit, which list out the reasons why the assessee had missed out in filing the delay condonation petition before the first appellate authority. On perusal of the reasons stated therein, we are satisfied that the assessee had bonafidely not filed the delay condonation petition. Therefore, in the interest of justice and equity, we direct the assessee to file a delay condonation petition for belated filing of appeal before the CIT(A). Accordingly, the issues raised in this appeal are restored to the files of the CIT(A). The CIT(A) is directed to examine the reasons stated
5 ITA No.1001/Bang/2022. M/s.Dream Logistics Company Private Limited. for belated filing of the appeal before him (68 days) and if so satisfied, after condoning the delay, he shall adjudicate the issues on merits. It is ordered accordingly.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced on this 21st day of November, 2022.
Sd/- Sd/- (Laxmi Prasad Sahu) (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore; Dated : 21st November, 2022. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A)-11, Bangalore. 4. The Pr.CIT (Central), Bengaluru. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore