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Facts
The assessee filed an appeal against an order that did not condone the delay of 455 days in filing. The delay was attributed to the COVID-19 period and attempts to resolve the demand through other remedies like section 154 applications.
Held
The Tribunal noted that the assessee had filed an application under section 154 of the Act which was not considered, and the assessee was awaiting a result from it. Therefore, the issue of delay was remitted back to the learned CIT(A) for fresh consideration.
Key Issues
Whether the delay in filing the appeal should be condoned, considering the COVID-19 period and other pending applications filed by the assessee.
Sections Cited
143(1), 250, 154
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Income Tax Appellate Tribunal, “SMC” BENCH : BANGALORE
Before: SHRI. LAXMI PRASAD SAHU & SHRI. SOUNDARARAJAN K
Per Laxmi Prasad Sahu, Accountant Member :
This appeal filed by the assessee is against the Order passed by the learned CIT(A) vide DIN and Order No.ITBA/APL/S/250/2024-25/1071076724(1) dated 10.12.2024, for not condoning the delay in filing the appeal by 455 days before him.
The assessee filed return of income on 01.10.2020 which was processed under section 143(1)(a) of the Act on 30.11.2021. Against the processing of return, the appeal was instituted before the learned CIT(A) on 31.03.2023 with a delay of 455 days. Assessee has answered by giving the reasons for delay at Sl. Nos. 14 and 15 in Form No.35 during the appellate proceedings but the learned Page 2 of 5 CIT(A) did not condone the delay and he observed that intimation under section 143(1) of the Act was passed on 30.11.2021 which was delivered to the assessee on 30.11.2021 and the appeal was filed on 31.03.2023. However, the judgment of Hon’ble Apex Court regarding condonation of TOLA regarding COVID19 period has not been considered. In this regard, the reasons filed before the CIT(A) was also filed before us and the learned Counsel has filed written submission which is as under:
“Ground no. 2 to 4:
1. 1. The appellant aggrieved by the order passed by AO, ADIT-CPC, Bangalore under section 143(1) of the Act dt 30/11/202, instituted an appeal before JCIT(APPEALS) - 2 on 31/03/2023 with an alleged delay of 455 days.
2. In this regard the appellant begs to submit that the delay of 455 days includes the Covid-19 period exclusions as per the suo-moto MA no 29/2022 passed by the Hon’ble Supreme Court of India on 10/01/2022. The Hon’ble Supreme Court has categorically held that where the limitation would have expired during the limitation period between 15/03/2020 till 28/02/2022 shall stand excluded for the purpose of limitation. Further, the Hon’ble Supreme Court held that not withstanding the actual balance period of limitation remaining, all person shall have a limitation period of 90 days from 01/03/2022. Accordingly, the appellant ought to have filed the appeal on or before 30/05/2022. However, the appellant has filed an appeal before the JCIT(Appeals) on 31/03/2023 with a delay of 305 days as against 455 days alleged by the JCIT(Appeals).
3. The appellant submits that in response to hearing notice under section 250 of the Income tax Act, 1961 dt 12/01/2024, a response was submitted on 18/01/2024 vide acknowledgement no 905608531180124 (copy is marked and enclosed as Annexure – A) wherein the appellant has enclosed the following documents: a. Power of Attorney b. Intimation under section 143(1) of the Act c. Copy of the Judgement in the case of ITO v Vokkaligara Sangha Page 3 of 5 d. Affidavit for condonation of delay e. Family trust deed f. ITR – 7 for AY 2020-21 The appellant submits that in the sworn affidavit dt 31/03/2023, it was categorically mentioned that the appellant had approached an expert to resolve the demand raised by the CPC. The appellant accordingly filed a detailed response disagreeing with the demand raised by the CPC vide transaction id FSO000470213887 dt 03/12/2021. The appellant subsequently after yielding no response to such response referred above, approached another expert who in in-turn advised to move an application under section 154 of the Act. Unfortunately, the efforts by filing an application under section 154 of the Act did not yield any desirable result to the appellant. The appellant after exhausting all available remedies filed an appeal contesting the disputed demand and the delay in filing the appeal before the JCIT(Appeals)-2 was neither intentional nor deliberate but for the fact that the appellant had sought to resolve the disputed demands through various other remedies under the law. The efforts put by the appellant yielded no desirable result and therefore the appellant filed a present appeal before Hon’ble ITAT, Bangalore to set aside the order of the JCIT(Appeals)-2.
The learned JCIT(Appeals)-2 in para 6.2 of its order dt 10/12/2024 has held that the delay in filing the appeal reflects the negligence of the assessee in filing the appeal and it was further alleged that the appellant had not submitted any explanation under oath.
In this regard the appellant submits that the assertion of JCIT(Appeals)-2 is both inaccurate and unsubstantiated. The response submitted on 18/01/2024 clearly indicates that the appellant has in fact provided a detailed explanation duly affirmed through an explanation for delay under under oath in compliance with the procedural requirements (copy of the affidavit is marked and enclosed as Annexure – B).
Therefore, the contention of the JCIT(Appeals)-2 that no explanation was submitted under oath cannot be accepted and appears to be either misapprehension of facts or misreading of records.
Page 4 of 5 Hence the appellant submits that such an allegation that the appellant has not provided any explanation under oath should be disregarded as the appellant has duly made compliances in accordance with law and therefore, the delay not condoned by JCIT(Appeals) – 2 is devoid of legal justification, against principles of natural justice and hence is liable to be set aside in the interest of justice and equity.”
On the other hand, the learned DR relied on the Order of the lower authorities and submitted that the delay explained in Form No.36 is different as per the explanation given by the assessee during the course of hearing. There is no specific reason stated in Form No.35 at Sl. No.15 by the assessee. Therefore, the delay should not be condoned and he further submitted that the learned CIT(A) has observed that the Order was sent through email to the assesee on 30.11.2021 itself. Therefore, the assessee should have filed appeal within the specified date and he heavily relied on the Order of the learned CIT(A).
4. Considering the rival submissions and on perusal on the entire material available on record and Orders of the lower authorities, on going through the written submissions, we noted that against the Order passed by the CPC, the assessee has filed application under section 154 of the Act which was not considered and as per the submission, the assessee was waiting for favourable result under section 154 of the Act, from the Income Tax Department, that is why the assessee did not file appeal before the ld. CIT(A) within the due date. Considering the facts of the case and in the interest of justice, we remit this issue back to the file of learned CIT(A) for fresh consideration and learned CIT(A) is directed to give reasonable opportunity of being heard to the assessee and decide the issue as per law. The assessee is directed to substantiate its case with the necessary documents and further directed not to seek unnecessary adjournment for early disposal of the case. In case of failure, the assessee shall not be granted any leniency.
Page 5 of 5 5. In the result, appeal filed by the assessee is allowed for statistical purposes.