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Income Tax Appellate Tribunal, BANGALORE BENCHES “C”, BANGALORE
Before: Shri George George K, JM & Ms.Padmavathy S, AM
O R D E R Per Bench : These appeals at the instance of the assessee are directed against two orders of the CIT(A), both dated 23.11.2021. The relevant assessment years are 2012-2013 and 2013-2014.
At the very outset, we noticed that the CIT(A) has dismissed both the appeals in limine on limitation without considering the case on merits. For assessment year 2012- 2013, there is a delay of 463 days in filing this appeal before the CIT(A). For assessment year 2013-2014, the delay in filing the appeal before the CIT(A) is 628 days. The reason stated in the petition for condonation of delay before the CIT(A) is identical for assessment years 2012-2013 and 2013-2014. It is stated that as against the order challenged before the 2 M/s.Prestige Estates Projects Limited. CIT(A), the assessee had filed rectification application and on dismissal of the rectification application, appeal was immediately filed, hence, there was a delay in filing appeal before the CIT(A). It was stated that if the date of rejection of rectification application is reckoned, there is no delay in filing the appeal before the CIT(A). The relevant portion of the petition for condonation for filing appeal before the CIT(A) for assessment year 2012-2013, reads as follows:-
“1.3 The Appellant is a public limited company engaged in the business of real estate development. Assessment order u/s 153A r.w.s. 143(3) was passed by DCIT, Central Circle 1(1), Bangalore dated 28.03.2016 assessing total income at Rs.158,19,10,254/-. 1.4 Order u/s 154 was passed on 12.07.2019 by adopting Rs.158,04,02,700 as the returned income. In response, the Appellant filed a rectification application u/s 154 on 25.07.2019 requesting rectification of the said order. However, the said application u/s 154 was rejected vide letter / order dated 28.05.2020. Subsequently, the assessee was not operating fully considering the fear of spread of COVID-19. This has resulted in the delay in filing the appeal before the CIT(A). 1.5 However, if 30 days from the date of receipt of the letter rejecting the rectification application is considered, then there is no delay considering the provisions of Section 3(1)(b) of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020.”
Similarly, the relevant portion of the petition for condonation of delay for filing appeal before the CIT(A) for assessment year 2013-2014, reads as follows:-
“1.3 The Appellant is a public limited company engaged in the business of real estate development. Assessment order u/s 153A r.w.s. 143(3) was passed by DCIT, Central Circle 1(1), Bangalore dated 28.03.2016 assessing total income at Rs.361,65,25,238/-.
1.4 Order u/s 154 was passed on 30.01.2019 by adopting Rs.361,65,25,238 as the returned income. In response, the Appellant filed a rectification application u/s 154 on 14.03.2019 requesting rectification of the said order. However, the said application u/s 154 was rejected vide letter / order dated 28.05.2020. Subsequently, the assessee was not operating fully considering the fear of spread of COVID-19. This has resulted in the delay in filing the appeal before the CIT(A). 1.5 However, if 30 days from the date of receipt of the letter rejecting the rectification application is considered, then there is no delay considering the provisions of Section 3(1)(b) of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020.”
The CIT(A) rejected the delay condonation petition by holding that the reasons advanced by the assessee do not show any good and sufficient reason to condone the delay. In support of the conclusions drawn by the CIT(A), he relied on various judicial pronouncements cited in para 4.1 to 4.3 of the impugned order.
Aggrieved, the assessee has filed appeals before the Tribunal. The learned AR reiterated the submissions made before the Income Tax Authorities.
The learned Departmental Representative supported the order of the CIT(A).
We have heard rival submissions and perused the material on record. The order impugned before the CIT(A) for assessment year 2012-2013 is passed u/s 154 of the I.T.Act (order dated 12.07.2019). Similarly, for assessment year 2013-2014, the order impugned before the CIT(A) is the order dated 30.01.2019 passed u/s 154 of the I.T.Act. The assessee
4 M/s.Prestige Estates Projects Limited. for assessment year 2012-2013 immediately on receipt of the order passed u/s 154 of the I.T.Act dated 12.07.2019 filed a rectification application on 25.07.2019 requesting for rectification of the said order. However, the said application was rejected u/s 154 vide order dated 28.05.2020. If we reckon the order rejecting rectification application (i.e., order dated 25.05.2020) there is no delay considering the provisions of section 3(1)(b) of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020.
7.1 Similarly, for assessment year 2013-2014, the order which was subject matter of challenge before the first appellate authority was the order dated 30.01.2019 passed u/s 154 of the I.T.Act. The assessee immediately on receipt of the said order (received by the assessee on 01.02.2019) filed a rectification application on 14.03.2019 requesting rectification of the said order. However, the said application of the assessee was rejected vide order dated 28.05.2020. Reckoning the date of rejection of the rectification application, i.e., 28.05.2020, there is no delay considering the provisions of section 3(1)(b) of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020. The assessee had filed rectification application within a short period requesting rectification of the orders which were subject matter of challenge before the first appellate authority. Therefore, the assessee was actively pursuing other available remedy under the Act, which is good and sufficient reason and warrants condonation of delay in filing the appeals before the CIT(A). The Cochin Bench of the Tribunal
5 M/s.Prestige Estates Projects Limited. in the case of Raja & Co. v. DCIT reported in (2013) 37 taxmann.com 268 (Cochin-Trib.) had condoned the delay in filing the appeal since the assessee was pursuing the matter by filing rectification application. The relevant finding of the Cochin Bench of the Tribunal reads as follows:- "There is no dispute that the appeal filed by the assessee will not become time barred if the date of receipt of the rectification order passed by Ld. CIT(A) is considered. However, since the present appeal is preferred against the original order, the time limit is required to be computed from the date of receipt of the same. However, we notice that the assessee was not keeping quiet after receipt of the original appellate order, but pursuing the matter by filing a rectification petition before the first appellate authority. Thus the assessee was pursuing some other available remedy available under the Act, which, in our view, can be considered as sufficient reason. Thus, in our view, the delay has occurred on account of sufficient reasons and hence the same deserves to be condoned. Accordingly, we condone the delay in filing the appeal and admit the same. " 7.2 The Hon’ble Madras High Court in the case of CIT v. K.S.P.Shanmugavel Nadar reported in (1987) 30 Taxmann 133 (Mad.) had condoned the delay by holding that the assessee had sufficient cause since he was prosecuting other remedies.
7.3 The Hon’ble Karnataka High Court in the case of Forest Development Corporation Ltd. v. ACIT reported in (2011) 196 Taxman 445 (Kar.) had held as under:-
"The reason for the delay would also have to be considered. The reason assigned by the assessee being just and reasonable, in our view constitutes sufficient cause. Moreover, we are of the view that the rights of the parties are required to be decided on merits and not on merely technicalities. Hence, on these grounds appeal is allowed. The delay in filing the appeal before the Tribunal is condoned."
6 M/s.Prestige Estates Projects Limited. 7.4 The following judicial pronouncements had held that the delay ought to be condoned and appeal should be considered on merits, when the assesee is able to make out a reasonable cause for delay in filing the appeal.
(i) Collector, Land Acquisition v. MST. Katiji & Ors. (167 ITR 471 (SC) (ii) Mithailal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SSC 691 (iii) Ganesh Prasad Badinarayan v. Sanjeev Prasad Jamnaprasad Chourasiya (2004) 7 SCC 482 (iv) Commissioner of Central Excise v. Raj Petroleum Products (2015) 5 TMI 449.
7.5 In the instant case, the assessee had filed rectification applications on time on receipt of the impugned orders, which were subject matter of challenge before the first appellate authority. Therefore, the assessee was actively pursuing other available remedy under the Act. Therefore no latches can be attributed to the assessee and there is good and sufficient reason to condone the delay in filing the appeal before the CIT(A) and we condone the same.
7.6 Since the issue on merits is not decided by the CIT(A), we restore these appeals to the files of the CIT(A). The CIT(A) is directed to consider the issue on merits. It is ordered accordingly.