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Facts
The assessee, a co-operative society, filed a NIL income return. An assessment order was passed u/s 144, determining income at Rs.6,27,60,087/- due to disallowance of unsubstantiated expenditure. Appeals against this order, and consequential penalty orders u/s 270A and 271B (for under-reporting and delay in filing audit report u/s 44AB), were dismissed in limine by the CIT(A) due to delays of 71 and 64 days respectively, as the assessee failed to file condonation of delay applications.
Held
The Tribunal acknowledged the assessee's failure to file condonation applications but noted the Supreme Court's *Suo Motu* Writ Petition extending limitation during the Covid-19 period, which covered one of the appeal delays. In the interest of justice, the Tribunal restored all three appeals to the CIT(A) with a direction for the assessee to file proper condonation applications, which the CIT(A) must decide as per law before considering the appeals on merits.
Key Issues
Whether the CIT(A) was justified in dismissing appeals in limine due to delay in filing, especially when the delay period was covered by the Supreme Court's *Suo Motu* extension of limitation, and without an application for condonation of delay being filed by the assessee.
Sections Cited
250, 144, 144B, 270A, 271B, 44AB
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘G’: NEW DELHI
Before: SHRI YOGESH KUMAR U.S. & SHRI MANISH AGARWAL
(ASSESSMENT YEAR 2018-19) (ASSESSMENT YEAR 2018-19) The Income Tax Seohara Co-operative Cane Officer, Development Union Vs. Ward-3(1), Limited, 34-Station Road, Nazibabad-1, UP Seohara, Bijnor-246746. PAN-AABAS4970K (Appellant) (Respondent) Assessee by Shri Gurneet, Adv. Department by Shri Sahil Kumar Bansal, Sr. DR Date of Hearing 17/04/2025 Date of Pronouncement 17/04/2025 O R D E R PER BENCH: These three appeals are filed by the assessee against three separate order of the ld. Commissioner of Income Tax (Appeals) [CIT(A)], National Faceless Appeal Centre (NFAC) and all are dated 23.3.2024 for AY 2018-19 passed u/s 250 of the Income Tax Act, 1961 (the Act). to 2852 /Del/2024 Seohara Co-operative Cane Development Union India vs. ITO 2. As all the three appeals are related to one assessment year against three seperate orders passed u/s 144 r.w.s. 144B, and consequential penalty order u/s 270A and 271B of the Act, wherein the ld. CIT(A) has dismissed the appeals filed by the assessee on account of delay in filing the respective appeals. Since the grounds raised by the assessee relating to dismissal of appeals without condoning the delay in filing, thus all the three appeals are taken together and disposed off by a single order.
Brief facts are that appellant is a co-operative society and filed its return of income on 30.03.2019 declaring NIL income. The assessment was taken up for complete scrutiny and the AO passed the order on 27.05.2021 u/s 144, on the basis of material available on record, wherein the income of the assessee was determined at Rs.6,27,60,087/- after making disallowance of expenditure claimed being unsubstantiate as assessee has failed to file any evidences and no cogent explanation was given. Against such order an appeal was filed before the ld. CIT(A) which was dismissed in limine as the same was filed delayed by 71 days. In the meantime, the AO has levied the penalty u/s 270A for under reporting of income and also u/s 271B for filing the audit report u/s 44AB after the stipulated date. These appeals were also filed delayed by 64 days and the same were also dismissed in limine by ld. CIT(A) by not condoning the delay in filing the appeals. In all the three appeals, assessee had not filed any application requesting for condonation of delay before the ld. CIT(A). to 2852 /Del/2024 Seohara Co-operative Cane Development Union India vs. ITO Aggrieved by the said orders of ld. CIT(A) present appeals are filed by the assessee before the Tribunal.
At the outset from the perusal of grounds of appeal in all the three appeals, it is seen that assessee has challenged the appellate orders where the appeals filed by the assessee are not admitted on account of delay in filing the appeals.
5. Before us, it was submitted by ld. AR that the ld. CIT(A) has dismissed the appeals of the assessee without giving sufficient opportunity of hearing. It was the submission that the ld. CIT(A) has not condoned the delay in filing appeal, solely for the reason that no application requesting the condonation of delay was filed by the assessee. It was the submission that the appeal against the order passed u/s 144 was filed during the Covid-19 period where the Hon’ble Supreme court in Suo Motto Writ Petition No. 3/2020 had extended all the limitation falling between the period from 15.03.2020 to 28.02.2020 till 31.5.2022. Regarding the other appeal against the penalty orders, it was submitted that theses are consequential action and thus, it was the prayer that delay in filing appeal before the ld. CIT(A) be condoned and the appeal may be decided on merits.
In reply, ld. Sr. DR submitted that assessee has neither made any submission before the AO nor field the appeals in time. He further stated that the assessee should not be provided another to 2852 /Del/2024 Seohara Co-operative Cane Development Union India vs. ITO opportunity as it seems that it is not serious in the matter. Hence, he opposed the contention of the ld. AR of the assessee.
We have considered the rival submissions. Adverting to the facts of the present case, it is seen that the assessee has not filed any application explaining the circumstances for delay in filing the appeals before CIT(A). Moreover, in the first appeal there is a delay of 71 days against the order u/s 144 of the Act and of 64 days against the penalty orders. There is no mala fide imputable to the assessee. It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. It is also a matter of fact that the Hon’ble Supreme court in the case of Suo Motu Writ Petition (supra) has directed to exclude the period from 15.03.2020 to 28.02.2022. Incidentally the appeal filed by the assessee against the order passed u/s 144 of the Act is fallen between this period. However, the assessee has failed to file any application for condonation of delay before ld. CIT(A) nor before us the reason for delay was explained.
After considering the overall facts and circumstances of the case and in the larger interest of justice, we restore all the three appeal back to the file of ld. CIT(A) and direct the assessee to file separate applications explaining the reasons for delay before the ld. CIT(A) in filing the appeal. Ld. CIT(A) is also directed to first decide the delay condonation application of the assessee as per law and in accordance to 2852 /Del/2024 Seohara Co-operative Cane Development Union India vs. ITO with the suo-moto petition (supra) of Hon’ble Supreme Court, and thereafter, decide the appeals of the assessee on merit if delay is condoned. The grounds of appeal No. 1 to 3 in appeal No. 2851/Del/2024 and grounds of appeal Nos. 1 & 2 in appeal Nos. 2850 & 2852 of the assessee are allowed with above directions.
Since we have remand the matter back to the file of CIT(A), thus other grounds of appeal
taken on the merits in all the three appeals are become academic and thus not adjudicated.
10. In the result, appeals of the assessee in Appeal Nos. 2850 to 2852/Del/2024 stands partly allowed for statistical purposes.
Order pronounced in open court on 17.04.2025.