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Income Tax Appellate Tribunal, “A’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal by the assessee is directed against the order of CIT(A) dated 14.2.2022. The assessee has raised grounds in this appeal, which are as follows:-
“The Appellate Order passed by the Commissioner of Income Tax u/s 250 is not justified in law and on facts and circumstances of the case.
The CIT(A) has erred in dismissing the Appeal and rejecting the condonation of delay in appeal filed by the assessee merely based on M/s. Suraj Ganga Developers LLP, Bangalore Page 2 of 8 written submissions without providing opportunity of being heard to the Appellant prior to dismissal of the appeal. Thus, the order of CIT(A) is against the principles of natural Justice.
3. The CIT(A) has erred in not condoning the delay in filing the Appeal before CIT(A) stating that the delay was due to inaction and negligence on part of the Appellant inspite of the bonafide intent of Appellant and genuine reasons of delay which proves that there was no intentional delay by the Appellant.
Without prejudice to the above, the respondent has erred in not considering the grounds of appeal
raised by the Appellant in Form 35.
5. The Appellant craves to add, alter, amend or delete any of the above tounds1pf appeal as long as it is in relation to the above matter under dispute.”
2. Facts of the case are that the assessee filed its return of income on 30.9.2019 declaring an income of Rs.9,17,280/-. The return of income was processed by Deputy Commissioner of Income-tax, CPC, Bangalore on 16.10.2019. The total income of the assessee is determined at Rs.58,31,290/-. While processing the return, the AO made disallowance u/s 43B of the Income-tax Act,1961 ['the Act' for short] at Rs.6,264/- towards delay in contribution of employees’ provident fund u/s 43B of the Act. There was also disallowance towards deduction u/s 80IB of the Act on the reason that the audit report in Form 10CCB, which was belatedly filed on 28.9.2019. Against this assessee went in appeal before Ld. CIT(A). There was a delay in filing appeal before Ld. CIT(A) at 342 days. The assessee explained the delay before Ld. CIT(A) as below:-
"The delay of 333 days in filing appeal is due to the fact that the Appellant duly forwarded the Intimation to his Chartered Accountant in October 2019. However, the person-in-charge in the CA office was busy in Tax Audit Season and missed to take action against this intimation. Later in January, the person-in-charge in the CA Office had filed his resignation from the audit firm in January 2020 and resigned in March 2020 without informing the Partners about the Intimation received. This issue was re- surfaced while the new person in-charge was doing the current year tax returns of the LLP. Intimation u/s 143(1) was then noticed, examined and M/s. Suraj Ganga Developers LLP, Bangalore
Page 3 of 8 bought to the knowledge of the partners in-charge. The Application for Condonation of delay in filing Form l0CCB was filed with CBDT on 14/10/2020 and parallely, decided to go for appeal with CIT(A). Therefore, the appeal is delayed by 333 days only due to the Lack of co- ordination in CA office for which the appellant should not be put into trouble."
The Ld. CIT(A) was of the opinion that there was no good and sufficient reason in filing the appeal belatedly before him and he observed that the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays. The reasons given by the assessee are very generic and unsubstantiated and thus the delays are not properly explained. In the case under consideration, the assessee was required to file appeal on or before 15.11.2019. The assessee has just given a vague and generic reason that the person in charge in the CA's office was busy in tax audit. It has not explained as to why the other persons in the said office could not take necessary steps for filing the appeal and what steps the assessee had taken to ensure that the appeal was filed in time. The assessee has argued that the said person in office of CA resigned in January 2020 without intimating the others about its matter. This is also an excuse which deserves no consideration. The assessee has not explained as to why it kept on waiting for months together when appeal was not filed in its case. Any reasonable person would have made alternative arrangements if its CA was not responding or not taking action for months together and thus adversely impacting its rights. Further, it is difficult to believe that the partners of CA firm were just relying on a person in their office without keeping a track of various urgent requirements of their clients. The assessee cannot just wash its hands off the matter by blaming the office of CA unless it shows that it had pursued the matter vigorously but despite that appeal could not be filed.
M/s. Suraj Ganga Developers LLP, Bangalore 3.1 Thus, the Ld. CIT(A) observed that the delay is nothing but negligence and inaction on part of the assessee which could have been very well avoided by the exercise of due care and attention. There exists no sufficient or good reason for condoning inordinate delay in filing the present appeal. So there is no reason for condoning such a delay in this case. Considering above the delay was not condoned by the Ld. CIT(A).
4. Against this assessee is in appeal before us. The Ld. A.R. submitted that there was a total delay of 342 days in filing the appeal before Ld. CIT(A). The assessee received intimation u/s 143(1a) of the Act on 16.10.2019. Due date for filing the appeal before Ld. CIT(A) was 15.11.2019. However, it was actually filed on 22.10.2020 with a delay of 342 days. The Ld. A.R. submitted that pre-covid period delay was from 15.11.2019 to 15.3.2020, which is required to be explained, thereafter it was Covid period. This past-Covid period delay need not be explained in view of the judgement of Hon’ble Supreme Court in MA No.665 of 2021 in SMW(C) No.3 of 2020 dated 23.9.2021 (Suo motu), wherein held that “in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.3.2020 till 14.3.2021 shall stand excluded”. The assessee has to explain the delay from 15.11.2019 to 15.3.2020 only. Regarding this, Ld. A.R. submitted that the delay from 15.11.2019 to 15.3.2020 at 107 days, which was due to on account of failure of employee of assessee’s Chartered Accountant Shri Rajiv K.C., Suresh & Company and he also drew our attention to the following affidavit by that person, which reads as follows:-
M/s. Suraj Ganga Developers LLP, Bangalore
M/s. Suraj Ganga Developers LLP, Bangalore
Accordingly, he submitted that the said delay may be condoned and appeal may be admitted and the issue may be remitted to Ld. CIT(A) to decide the appeal on merit.
The Ld. D.R. relied on the order of Ld. CIT(A).
We have heard the rival submissions and perused the materials available on record. In this case, there was a delay of 342 days in filing the appeal before Ld. CIT(A). However, the delay before the Covid period is from 15.11.2019 to 31.3.2020 at 107 days and past-Covid period delay was 235 days. The assessee explained by way of affidavit that the assessee handed over the paper to the employee of assessee’s Chartered Accountant namely Shri K.C. Rajiv. Since he was busy in tax audit cases during this period, it was lost of his sight to file appeal before the Ld. CIT(A), which was unintentional.
Further, Hon’ble Supreme Court in the case of Collector Land Acquisition Vs. Mst. Katigi (167 ITR 471), wherein it was held as follows:- 1) “Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
2) Refusing to condone delay can result in a meritorious matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
3) “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine
M/s. Suraj Ganga Developers LLP, Bangalore
Page 7 of 8 must be applied in a rational, common sense and pragmatic manner.
4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6) It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to dos so.”
9.1 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non-deliberate delay. In this case, no counter-affidavit was filed by the revenue denying the allegation made by the assessee. It is not the case of the revenue that the appeal was not filed deliberately. Therefore, we have to prefer substantial justice rather than technically in deciding the issue.
Hence, we find good and sufficient reason in not filing the appeal in time before the Ld. CIT(A). Accordingly, we condone the delay for adjudication. Since the Ld. CIT(A) not decided the issue on merit, we remit the appeal to decide the case on merits.
M/s. Suraj Ganga Developers LLP, Bangalore Page 8 of 8
In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 20th Jun, 2022