TWOPIRADIAN INFOTECH PRIVATE LIMITED,KOLKATA vs. ITO WARD 2(1)-KOL, KOLKATA
PER SANJAY AWASTHI, ACCOUNTANT MEMBER 1. This is a batch of three appeals of the same assessee for (Assessment Years (AY) 2020-21, 2021-22, and 2022-23. Since the issues are inter- connected, these appeals are being disposed of through a single order. It is noticed that all these three appeals are barred by limitation to the extent of 245 days. The assessee has filed a petition for condoning the said delay
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited in all of the three cases. For the sake of convenience, the affidavit filed for AY 2020-21 [ITA No. 245/Kol/2025] is extracted for reference:
“I JISHNU PRATAP RAY, Son of Sukhendu Ray, born on 16/02/1967, having PAN:
ACSPR7183B and DIN: 00818472, a Citizen of India and residing at 68, Sonali
Apartment,8/2A, Alipur Park Road, Kolkata 700027, West Bengal, India, a Director of TWOPIRADIAN INFOTECH PRIVATE LIMITED, having PAN: AACCT5883Dand
CIN:U72900WB2006PTC112124, do hereby declare on solemn oath and affirm as under:
1. THAT I am a Citizen of India, having PAN: ACSPR7183B.
2. THAT I am a permanent resident of at 68, Sonali Apartment, 8/2A, Alipur
Park Road, Kolkata 700027, West Bengal, India.
3. THAT I am a Director of TWOPIRADIAN INFOTECH PRIVATE LIMITED, having PAN:AACCT5883D and CIN:U72900WB2006PTC112124, having its Registered Office at BIPLBuilding-C.Block-EP&GP, Sector-V,Salt Lake City,
India, 700091 Twenty-four Parganas North, Salt Lake, West Bengal,
4. THAT I filed an appeal before the Joint Commissioner (Appeals) or the Commissioner of Income Tax (Appeals) under Section 246A of the Income Tax
Act, 1961, on 13/02/2024, though belatedly, vide e-Filing Acknowledgement
Number: 110773970130224 for the Assessment Year 2021-22 belatedly on the grounds explained WARI the Statement of Facts and Grounds of Appeal.
5. THAT the said appeal has been rejected by the Hon'ble ADDL/JCIT (A)-1,
SURAT vide his Order & DIN: ITBA/API/S/250/2023 24/1062196758(1) passed under Section 250 of the Income Taxi Act, 1961, on 07/03/2024on sole ground of belated filing of appeal without going into merit and without giving an opportunity to the Assessee of being heard.
6. THAT we were shocked to find the huge demands raised against us and were in dilemma to file before your Honour as this demand will certainly cause undue hardship on the financial strength of the Company.
7. THAT we have missed the said Order purportedly sent thorough e-mail only and I could not file the Appeal against the said Order within time as stipulated under Section 253 of the Income Tax Act, 1961. 8. THAT I came to know about the huge outstanding tax demand only in the month of February 2024 when I received an Intimation under Section 245 of the Income Tax Act, 1961. 9. THAT We are filing an appeal before the Hon'ble Kolkata Bench of the Income Tax Appellate Tribunal, challenging therein the legality, validity and propriety of the impugned order passed by the Hon'ble ADDL/JCIT (A)-1,
SURAT vide his Order & DIN: ITBA/APL/S/250/2023-24/1062196758(1) passed under Section 250 of the Income Tax Act, 1961, on 07/03/2024
10. THAT the appeal to be filed before the Hon'ble Kolkata Bench of Income
Tax Appellate Tribunal as referred to hereinabove would be a belated appeal and there is a delay of about 270 days in filing the appeal.
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited
THAT We are, being aggrieved of the impugned order, going to file an appeal before the Hon'ble Kolkata Bench of Income Tax Appellate Tribunal and this affidavit is executed for filing the same before the Hon'ble Kolkata Bench of Income Tax Appellate Tribunal in the matter of condonation of delay in filing the appeal. 12. THAT the contents of this Affidavit are true and correct to the best of my knowledge and belief. 13. THAT this Affidavit is executed in Kolkata on this 31st Day of January, 2025.” 1.1 It is seen that similar affidavits have been filed for the remaining two cases also. Accordingly, considering the reasons given for the said delay, the delay is hereby condoned in these appeals and the same are admitted for adjudication. 2. For the sake of convenience, the lead case shall be AY 2020-21 [ITA No. 245/Kol/2025]. This appeal arises from order of Ld. Additional/Joint Commissioner of Income Tax (Appeals)-1 Surat [hereafter “the Ld. Addl/JCIT(A)], vide order dated 07.03.2024. 2.1 In this case, the assessee filed its return of income on 31.12.2020. The Ld. AO-CPC added back employees’ contribution to PF/ESI on the ground that the same was not paid within time. Aggrieved with this action, the assessee approached the Ld. Addl/JCIT(A) where it is seen that there was a delay of 750 days in the filing of the appeal before the Ld. CIT(A). It is observed that in para 4.5 at page 4 and 5 of the impugned order [ITA No. 245/Kol/2025], the Ld. Addl./JCIT(A) has rejected the reasons seeking condonation of the said delay and thus at the entry points itself the appeal has been dismissed. However, the Ld. Addl./JCIT(A) has not stopped at the issue of non-condonation of the delay but has also dealt with the merit of the case and held the issue to be against the assessee following the case of Checkmate Services Pvt. Ltd. reported in 448 ITR 518 (SC). In this regard,
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited the pleadings of the assessee regarding the Covid-19 pandemic period and relaxation in the dates for compliance, was not accepted.
2.2
Further, aggrieved, the assessee has approached the ITAT with grounds of appeal which challenge both these actions of the Ld.
Addl/JCIT(A). For the sake of convenience, the grounds of appeal for AY
2020-21 [ITA No. 245/Kol/2015] are being extracted for reference:
“1. The impugned order and DIN: ITBA/APL/S/250/2023-24/1062195431(1) passed by the Hon'ble ADDL/JCIT (A)-1, SURAT under Section 250 of the Income
Tax Act, 1961, against which the present appeal is being preferred, dismissing the Appeal on the sole ground of belated filing of Appeal, is unlawful and in violation of principles of natural justice.
2. The disallowance of expenditure pursuant to Section 36(1)(va) of the Income Tax
Act, 1961, amounting to 29,84,656/- based only on the Audit Report under Section 44AB of the Act, furnished by the Auditor is highly unjustified, as the Assessing
Officer, being the CPC, Bengaluru, without verifying the due dates of deposit of the contributions under various funds as per the respective laws, made such huge additions to income.
3. The Assessing Officer, being CPC, Bengaluru has erred in appreciating the Due
Date of depositing the contributions as specified under the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952, vis-à-vis Employees share of contribution as dealt with by Section 36(1)(va) of the Act, as detailed below:
Though, admittedly the Assessee has delayed in depositing the contributions under the funds as specified under Section 36(1)(va) of the Act, however, for the Month of March 2020, the Due date to deposit the Provident Fund dues shall be extended period within 15/05/2020 as per COVID-19 relief announced by the Government of India.
Wage
Month
Employee’s
Contribution
Employer’s contribution
Total
Contribution
Due Date to deposit of Contribution
Actual Date of Deposit
April 2019 214850
214850
444628
15/05/2019 31/07/2019
May 2019
220579
220579
456546
15/06/2019 31/07/2019
June
2019
233930
233930
484046
15/07/2019 23/11/2019
July 2019
251927
251927
521431
15/08/2019 23/11/2019
August
2019
254880
254880
527573
15/09/2019 25/11/2019
September
2019
246940
246940
511188
15/10/2019 03/12/2019
October
2019
239797
239797
496440
15/11/2019 07/02/2020
November
2019
239797
239797
496440
15/12/2019 07/02/2020
December
2019
246907
246907
511120
15/01/2020 28/04/2020
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited
January
2020
245425
245425
508002
15/02/2020 28/04/2020
February
2020
245425
245425
508002
15/03/2020 28/04/2020
March
2020
248481
248481
511248
15/05/2020 16/09/2020
The Assessing Officer, being CPC, Bengaluru, has erred in disallowing the expenditure under Section 36(1)(va) of the Act, being the Employees' contribution part only, as the Assessing Officer has failed to verify the Employees Share of Contribution as per Electronic Challan cum Return (ECR) copy as uploaded in EPFO portal. 5. The Addition of Rs. 29,84,656/- to the Returned Income of the Assessee by disallowing the expenditure under Section 36(1)(va) of the Act, by CPC, Bengaluru, without giving any opportunity of being heard and subsequent dismissal of appeal under Section 246A of the Act, by the Hon'ble ADDL/JCIT (A)-1, SURAT under Section 250 of the Income Tax Act, 1961, solely on the ground of belated filing of appeal, are in strict violation of principles of natural justice and beyond law. 6. The disallowance of expenditure under Section 36(1)(va) of the Act and consequent additional tax burden thereon causes undue hardship to the Assessee and penalising multiple times under different laws for the same offence. 7. The Assessee was suffering from huge cash crunch during the relevant period and hence defaulted in depositing the statutory contributions within due dates but paid the contributions before filing the Return of Income for the relevant Assessment Year. The Assessee pays the damages for delay in depositing the Provident Fund dues as per Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and additional tax liability for reason beyond the control of the Assessee, will further cause hardship and financial damages to the Assessee. As the Assessee has no executive recourse in this case, this present appeal is filed for making the correct assessment as per the mandate of law together with an APPLICATION OF CONDONATION OF DELAY AND STAY OF DEMAND. 9. That the aforesaid grounds of appeal are without prejudice to each other. 10. That the Appellant craves leaves to add alter, delete, amend, modify or substitute any ground/grounds and to add any new ground or grounds before or at the time of hearing the appeal. 11. In view of all these and other grounds which may be produced during the hearing of the appeal, the appeal may be allowed and justice rendered.” 3. Before us, the Ld. AR vehemently argued that in the first instance, the delay should have been condoned at the level of the Ld. JCIT(A) on the basis of reasons given before the Ld. Addl/JCIT(A) and once the same were not considered as having any merit, then perhaps the appeal should not have been decided on substantive merit at all. Secondly, it was averred by the Ld. AR that the assessee had actually meticulously followed the law
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited and deadlines given thereon, for depositing ESI & PF. It was further mentioned that at the time of preparation of audit report, it is possible that some payments may be outstanding but they were later on deposited within the dates mentioned in the respective PF/ESI Acts. It was requested that these cases may be remanded back to the file of Ld. AO so that the assessee could file the necessary evidences for seeking relief.
3.1
The Ld. DR relied on the orders of authorities below.
4. We have carefully considered the rival submissions and have also gone through the record. There is merit in the Ld. AR’s arguments that in case the issue of limitation was to be held against the assessee then the Ld. Addl./JCIT(A) should not have proceeded any further in deciding the appeal on merit. However, that discussion is now rendered academic for the simple reason that the Ld. Addl/JCIT(A) proceeded ahead with the adjudication and decided the case on merits also. Considering the totality of facts and circumstances of the case and the averments of Ld. AR, we deem it fit to set aside the impugned order [ITA 245/Kol/2025] and remand the issue back to the file of Ld. AO for affording an opportunity to the assessee for filing the details of depositing the PF & ESI amounts in the government account. Needless to say, the Ld. AO would give an opportunity of being heard and the assessee would do well to furnish all necessary documents so that there is no confusion regarding the dates on which the PF/ESI amounts have been deposited in the government account.
4.1
In result, appeal in ITA No. 245/Kol/2025 is allowed for statistical purposes.
5. Considering the finding given for ITA No. 245/Kol/2025, since the facts are similar in the remaining two appeals, hence the decision in this case shall apply mutatis mutandis to ITA Nos. 246 & 247/Kol/2025 also.
6. In result, all three appeals are allowed for statistical purposes.
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ITA Nos. 245-247Kol/2025
Twopiradian Infotech Private Limited
Order pronounced on 04.08.2025 (George Mathan) (Sanjay Awasthi)
Judicial Member Accountant Member
Dated: 04.08.2025
AK, Sr. P.S.
Copy of the order forwarded to:
1. Twopiradian Infotech Private Limited
2. ITO Ward 2(1), Kolkata
3. CIT(A)
4. CIT
CIT(DR)
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By order