DSP FINANCE PRIVATE LIMITED ,MUMBAI vs. THE DEPUTY COMMISSIONER OF INCOME TAX -39(1)(1), MUMBAI

2. Without prejudice to what is stated in 1 above: 2. Without prejudice to what is stated in 1 above: (a) The CPC while passing intimation under section 143(1) of the The CPC while passing intimation under section 143(1) of the The CPC while passing intimation under section 143(1) of the Income-tax Act, 1961 ("the Act") erred in determining a taxable tax Act, 1961 ("the Act") erred in determining a taxable tax Act, 1961 ("the Act") erred in determining a taxable income of a sum of Rs.231,32,24,150/ income of a sum of Rs.231,32,24,150/- as against a taxable income as against a taxable income of sum of Rs.226,32,93,530/ of sum of Rs.226,32,93,530/- as per Return of Income filed and as per Return of Income filed and erred in determining a sum of Rs.2,69,71,889/ rred in determining a sum of Rs.2,69,71,889/- refundable to the refundable to the appellant as against a sum of Rs.3,33,03,998/ appellant as against a sum of Rs.3,33,03,998/- refundable to the refundable to the appellant as per return of income filed appellant as per return of income filed (b) The CPC erred in making certain adjustment which do not (b) The CPC erred in making certain adjustment which do not (b) The CPC erred in making certain adjustment which do not qualify or fall under the a qualify or fall under the adjustments specified under section 143(1) djustments specified under section 143(1) and accordingly the CPC was not justified in making the and accordingly the CPC was not justified in making the and accordingly the CPC was not justified in making the adjustments to total income while passing order under Section adjustments to total income while passing order under Section adjustments to total income while passing order under Section 143(1). (c) Without prejudice to what is stated in 2(b) above, CPC erred in (c) Without prejudice to what is stated in 2(b) above, CPC erred in (c) Without prejudice to what is stated in 2(b) above, CPC erred in disallowing a sum of disallowing a sum of Rs.69,50,020/- under section 43B of the Act under section 43B of the Act being provision for gratuity which has been paid during the year being provision for gratuity which has been paid during the year being provision for gratuity which has been paid during the year before the due date of filing of the Income Tax Return. before the due date of filing of the Income Tax Return. before the due date of filing of the Income Tax Return. The same was disallowed in earlier years and the same ought to be allowed was disallowed in earlier years and the same ought to be allowed was disallowed in earlier years and the same ought to be allowed as business dedu as business deduction on payment basis during the assessment ction on payment basis during the assessment year under appeal in accordance with the Explanation to Section year under appeal in accordance with the Explanation to Section year under appeal in accordance with the Explanation to Section 43B of the Act. 43B of the Act. (d) Without prejudice to what is stated above, the CPC erred in (d) Without prejudice to what is stated above, the CPC erred in (d) Without prejudice to what is stated above, the CPC erred in disallowing a sum of Rs.1,78,20,507/ disallowing a sum of Rs.1,78,20,507/- on account of difference on account of difference between the depreciation charged as per Companies Act, 2013 een the depreciation charged as per Companies Act, 2013 een the depreciation charged as per Companies Act, 2013 which is debited to Profit and Loss account and the depreciation which is debited to Profit and Loss account and the depreciation which is debited to Profit and Loss account and the depreciation claimed as per the provisions of section 32 of the Act which amount claimed as per the provisions of section 32 of the Act which amount claimed as per the provisions of section 32 of the Act which amount was already disallowed in the return of income resulting in double was already disallowed in the return of income resulting in double was already disallowed in the return of income resulting in double disallowance. disallowance.

3. The appellant submits that the Assessing Officer be directed: The appellant submits that the Assessing Officer be directed: The appellant submits that the Assessing Officer be directed: (i) To delete the disallowance under section 43B amounting to (i) To delete the disallowance under section 43B amounting to (i) To delete the disallowance under section 43B amounting to Rs.69,50,020/ Rs.69,50,020/-; (ii) To delete the disallowance of depreciation ; (ii) To delete the disallowance of depreciation amounting to Rs. 1,78,20,507 /; and to modify the a amounting to Rs. 1,78,20,507 /; and to modify the a amounting to Rs. 1,78,20,507 /; and to modify the assessment in accordance with the provisions of the Act accordance with the provisions of the Act 2. The relevant facts, as presented, are that the assessee filed its The relevant facts, as presented, are that the assessee filed its The relevant facts, as presented, are that the assessee filed its return of income for the assessment year under consideration, return of income for the assessment year under consideration, return of income for the assessment year under consideration, which was processed by the CPC. Subsequently, an intimation which was processed by the CPC. Subsequently, an intimation which was processed by the CPC. Subsequently, an intimation order under Section 143(1) of the Act was issued on 13th order under Section 143(1) of the Act was issued on 13th order under Section 143(1) of the Act was issued on 13th September 2022, wherein certain adjustments were made to the 2022, wherein certain adjustments were made to the 2022, wherein certain adjustments were made to the returned income. Aggrieved by this intimation, the assessee returned income. Aggrieved by this intimation, the assessee returned income. Aggrieved by this intimation, the assessee preferred an appeal before Ld. CIT(A), which was instituted on 9th preferred an appeal before Ld. CIT(A), which was instituted on 9th preferred an appeal before Ld. CIT(A), which was instituted on 9th June 2023. The assessee contended that the intimation order dated June 2023. The assessee contended that the intimation order dated June 2023. The assessee contended that the intimation order dated 13th September 2022 was served upon it on 12th May 2023. er 2022 was served upon it on 12th May 2023. er 2022 was served upon it on 12th May 2023. Consequently, it was submitted that the appeal filed on 9th June Consequently, it was submitted that the appeal filed on 9th June Consequently, it was submitted that the appeal filed on 9th June 2023 fell within the statutory limitation period of 30 days, as 2023 fell within the statutory limitation period of 30 days, as 2023 fell within the statutory limitation period of 30 days, as prescribed under Section 249 of the Act, for filing an appeal before prescribed under Section 249 of the Act, for filing an appeal before prescribed under Section 249 of the Act, for filing an appeal before the Ld. CIT(A). Notwithstanding this contention, the assessee, while ). Notwithstanding this contention, the assessee, while ). Notwithstanding this contention, the assessee, while presenting its submissions on the merits of the case, did not file a presenting its submissions on the merits of the case, did not file a presenting its submissions on the merits of the case, did not file a formal application seeking condonation of the delay, if any, in filing formal application seeking condonation of the delay, if any, in filing formal application seeking condonation of the delay, if any, in filing the appeal. The Ld. CIT(A), however, was not convinced by the the appeal. The Ld. CIT(A), however, was not convinced by th the appeal. The Ld. CIT(A), however, was not convinced by th assessee’s claim that the intimation order had been served with a assessee’s claim that the intimation order had been served with a assessee’s claim that the intimation order had been served with a delay of over nine months. Instead, the Ld. CIT(A) concluded that delay of over nine months. Instead, the Ld. CIT(A) concluded that delay of over nine months. Instead, the Ld. CIT(A) concluded that the intimation order was served immediately after its issuance. the intimation order was served immediately after its issuance. the intimation order was served immediately after its issuance.

Based on this determination, the Ld. CIT(A) declined to condone the Based on this determination, the Ld. CIT(A) declined to co Based on this determination, the Ld. CIT(A) declined to co delay and, accordingly, dismissed the appeal as unadmitted. delay and, accordingly, dismissed the appeal as unadmitted. delay and, accordingly, dismissed the appeal as unadmitted. Aggrieved by the dismissal of its appeal, the assessee has preferred Aggrieved by the dismissal of its appeal, the assessee has preferred Aggrieved by the dismissal of its appeal, the assessee has preferred the present appeal before the Income Tax Appellate Tribunal (ITAT), the present appeal before the Income Tax Appellate Tribunal (ITAT), the present appeal before the Income Tax Appellate Tribunal (ITAT), raising the grounds as outlined above. raising the grounds as outlined above.

2.1 This matter, therefore, revolves around two core issues for atter, therefore, revolves around two core issues for atter, therefore, revolves around two core issues for adjudication:

"On perusal of information available in the CPC 2.0 Portal, it is information available in the CPC 2.0 Portal, it is information available in the CPC 2.0 Portal, it is seen that the intimation u/s 143(1) of the Act dated 13.09.2022 seen that the intimation u/s 143(1) of the Act dated 13.09.2022 seen that the intimation u/s 143(1) of the Act dated 13.09.2022 vide DIN No. CPC/2021/A6/303385850 was served on the vide DIN No. CPC/2021/A6/303385850 was served on the vide DIN No. CPC/2021/A6/303385850 was served on the assessee on 11.05.2023 on the email ID cf.taxes@dspim.com and assessee on 11.05.2023 on the email ID cf.taxes@dspim.com and assessee on 11.05.2023 on the email ID cf.taxes@dspim.com and through SMS on Mobile No. 8879189908 mentioned in the return through SMS on Mobile No. 8879189908 mentioned in the return filed for the year under consideration. The relevant screenshot of filed for the year under consideration. The relevant screenshot of filed for the year under consideration. The relevant screenshot of the CPC 2.0 Portal is attached for your ready reference. The the CPC 2.0 Portal is attached for your ready reference. The the CPC 2.0 Portal is attached for your ready reference. The initiation date of the said document is shown as 11.05.2023, and initiation date of the said document is shown as 11.05.2023, and initiation date of the said document is shown as 11.05.2023, and the delivery status is also shown as 11.05.2023. The mode of the delivery status is also shown as 11.05.2023. The mode of dispatch is Email/SMS, and the status is shown as SUCCESS. dispatch is Email/SMS, and the status is shown as SUCCESS. dispatch is Email/SMS, and the status is shown as SUCCESS. Sd/- (Basant Kumar Arya) (Basant Kumar Arya) ACIT-3(1)(1), Mumbai" 3(1)(1), Mumbai" 3.2 In view of the report submitted by the AO, it is unequivocally In view of the report submitted by the AO, it is unequivocally In view of the report submitted by the AO, it is unequivocally established that the intimation order dated 13th September 2022 established that the intimation order dated 13th September 2022 established that the intimation order dated 13th September 2022 was served upon the assessee only on 11th May 2023. was served upon the assessee only on 11th May 2023. was served upon the assessee only on 11th May 2023. Consequently, the appeal filed by the assessee before the Ld. Consequently, the appeal filed by the assessee before the Ld. Consequently, the appeal filed by the assessee before the Ld. CIT(A) on 9th June 2023 falls well within the statutory limitation une 2023 falls well within the statutory limitation une 2023 falls well within the statutory limitation period of 30 days, as prescribed under Section 249(2) of the Act. period of 30 days, as prescribed under Section 249(2) of the Act. period of 30 days, as prescribed under Section 249(2) of the Act. The Ld. CIT(A), in rejecting the appeal as time The Ld. CIT(A), in rejecting the appeal as time-barred, has thus barred, has thus erred in not appreciating the correct factual position regarding the erred in not appreciating the correct factual position regarding the erred in not appreciating the correct factual position regarding the date of service of the intimation order. Accordingly, the finding of of service of the intimation order. Accordingly, the finding of of service of the intimation order. Accordingly, the finding of the Ld. CIT(A) on this issue is hereby set aside. Since the Ld. the Ld. CIT(A) on this issue is hereby set aside. the Ld. CIT(A) on this issue is hereby set aside. CIT(A) has not adjudicated the appeal on the merits of the grounds CIT(A) has not adjudicated the appeal on the merits of the grounds CIT(A) has not adjudicated the appeal on the merits of the grounds raised therein, the matter is remitted back to the Ld. CIT(A) for raised therein, the matter is remitted back to the Ld. CIT(A raised therein, the matter is remitted back to the Ld. CIT(A fresh adjudication, confined to the merits of the grounds raised fresh adjudication, confined to the merits of the grounds raised fresh adjudication, confined to the merits of the grounds raised before him. The Ground No. 1 of the appeal of the assessee is Ground No. 1 of the appeal of the assessee is Ground No. 1 of the appeal of the assessee is allowed. The Ground Nos. 2 and 3, being alternative grounds, are Ground Nos. 2 and 3, being alternative grounds, are Ground Nos. 2 and 3, being alternative grounds, are dismissed as infructuous. dismissed as infructuous.