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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI MAHAVIR SINGH, HON’BLE & SHRI GIRISH AGRAWAL, HON’BLE
आदेश / O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
This appeal filed by the assessee is arising out of the order of the learned Commissioner of Income Tax (Appeals)-6, Chennai, in dated 28.11.2019 against the Assessment Order framed by the Asst. Commissioner of Income Tax, Corporate Circle-2(1), Chennai, dated 12.12.2018, for the Assessment Year 2016-17, u/s.143(3) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act').
2. At the outset, we note that there is a delay of 762 days in filing the present appeal. The order of the Commissioner of Income Tax (Appeals) AY 2016-17 M/s.Growrite Substrates (India) P. Ltd :: 2 ::
is dated 28.11.2019 and therefore, this appeal should have been filed by 27.01.2020, whereas, it has been filed by post on 04.04.2022. It is submitted by the assessee that the order of the First Appellate Authority was not received by the assessee and it came to the knowledge of the assessee about the passing of the Ld.CIT(A) order only when the notice for penalty proceedings u/s.271(1)(c) of the Act, was received by the assessee. The penalty notice was received by the assessee on the e-mail address, after which, it took all the steps to file this appeal despite there being delay in filing. The claim of the assessee is that there is a delay from 27.01.2020 up to the start of the Covid-19 pandemic in March, 2020. After that, the Hon’ble Supreme Court in its decision in suo moto Writ Petition (Civil) No.3/2020 dated 10.01.2022 had held that the period from 01.03.2020 to 28.02.2022 should be excluded while reckoning limitation period. Further, the Hon’ble Supreme Court has allowed 90 days from 01.03.2022 to file the belated appeals. Accordingly, the Counsel claimed that this appeal is filed within the time permitted by the Hon’ble Supreme Court and thus, prayed for its admission by condoning the delay. The assessee has put on record an Affidavit explaining the reasons for the delay.
We have duly considered the contentions of the ld.Counsel and gone through the record. Sec.253(2) of the Act, contemplates that the Tribunal may admit an appeal after the expiry of relevant limitation period, if it is satisfied that there was a sufficient cause for not presenting it within the prescribed period. Similarly, it has been used in Sec.5 of the Indian AY 2016-17 M/s.Growrite Substrates (India) P. Ltd :: 3 ::
Limitation Act, 1963. Whenever interpretation and construction of this expression has arisen for consideration before the Hon’ble High Courts as well as before the Hon’ble Supreme Court, then, Hon’ble Courts were unanimous in their conclusion that this expression is to be used liberally.
We find guidance from the decision of the Hon’ble Supreme Court in the case of Collector Land Acquisition v. Mst. Katiji & Ors., 1987 AIR 1353. It is suffice to say that whenever the reasons are assigned by an applicant for explaining the delay, then, such reasons are to be construed with a justice oriented approach. Therefore, for the just decision of the controversy, we find it appropriate to condone the delay, though stated to be of 762 days which predominantly comprises of period relating to Covid-19 pandemic and thus, admit it for adjudication.
3. The assessee has raised the following grounds of appeal:
The learned Commissioner of Income-tax (Appeals) erred in dismissing the appeal of the appellant on technical grounds.
The learned Commissioner of Income-tax (Appeals) is not justified in dismissing the appeal for non-appearance of the hearing dates.
The appellant submits that it has not received the hearing notices on the first two hearings on 24/6/2019 and 11/7/2019 and therefore the appellant was prevented from attending to the hearing.
4. The appellant submits that the last notice dated 6/11/2019 was received through e mail only on 25/11/2019 posting the appeal on 27/11/2019 and before the appellant could respond the order was passed on 28/1 1/2019.
The appellant therefore submits that it was prevented reasonable cause in not attending to the hearing of the appeal.
6. The learned Commissioner of Income-tax (Appeals) erred in holding that the appeal is defective as the verification was not properly filled in the appeal Form No.35.
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The appellant submits that the Director of the appellant company has only signed the Form 35 as per the provisions of section 140 of the Act but due to inadvertence they have put the company's name instead of the Director's name in the verification.
The learned Commissioner of Income-tax (Appeals) should have notified the defect in the appeal and the appellant could have easily rectified the defect instead of dismissing the appeal for alleged discrepancies.
The appellant therefore pray that the appeal may be restored back to the Commissioner of Income-tax (Appeals) for deciding the appeal on. merits by condoning the mistakes committed while filing the appeal and in not responding to the hearing notices and render justice.
The brief facts of the case are that the assessee has filed its return of income on 12.10.2016 reporting a loss of Rs.1,80,97,430/-. In the course of the assessment proceedings, the ld.AO disallowed an amount of Rs.57,93,953/- in respect of foreign exchange loss, which arose due to return of foreign currency denominated advance receipt from the buyer, which was retuned with delay and resulted in the foreign exchange loss owing to exchange fluctuation. The AO while making the disallowance held that the amount was returned by the buyer after 6 years and hence, it was capital loss and not a revenue expenditure allowable u/s.37(1) of the Act.
From the perusal of the order of the Ld.CIT(A), it is noted that the appeal of the assessee has been dismissed on technical ground. The Ld.CIT(A) observed that the form of verification of the appeal filed before him, was defective as it was not verified by the person who is authorized to verify the return of income u/s.140 of the Act r.w.r.45 of the Income Tax Rules, 1962. While dismissing the appeal on technical ground, the Ld.CIT(A) held that form of verification and digital signature goes to the root of the appeal AY 2016-17 M/s.Growrite Substrates (India) P. Ltd :: 5 :: and these are the discrepancies, based on which, the appeal cannot be proceeded.
5. Aggrieved, the assessee is in appeal before the Tribunal and has prayed for setting aside the case back to the file of the Ld.CIT(A) for its meritorious disposal by passing a speaking order. The ld.Counsel of the assessee while making this prayer assured the Bench that the technical defect noted by the Ld.CIT(A) shall be rectified. We find that in the interest of justice, fair play and good conscience, it is proper to remit the matter back to the file of the Ld.CIT(A) for meritorious disposal of the matter.
Needless to say that the assessee shall ensure to remove the defect for the proper adjudication of the appeal. Further, it is directed that the assessee be given reasonable opportunity of being heard and also that the assessee shall co-operate by making required compliances for the meritorious disposal of the appeal. Accordingly, the appeal filed by the assessee is allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced on the 23rd day of May, 2022, in Chennai.