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Income Tax Appellate Tribunal, KOLKATA ‘A-SMC’ BENCH, KOLKATA
Before: SRI MANISH BORAD
order : September 8th , 2022 ORDER This appeal filed by the assessee pertaining to the Assessment Year (in short “AY”) 2019-20 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the “Act”) by ld. Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [in short ld. “CIT(A)”] dated
I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. 20.09.2021 arising out of the assessment order framed u/s 143(1) of the Act dated 10.09.2020.
Registry has informed that the appeal is time barred by 3 days. Application for condonation of delay is filed and the reason for the delay of 3 days was due to holidays for three consecutive days. I am satisfied with the reasons and thus condone the delay and admit the appeal for adjudication.
When the case was called for none appeared. Perusal of records shows that number of opportunities were granted, but the assessee failed to appear on last two occasions. I, thus, decide to dispose off the appeal with the assistance of the Ld. Departmental Representative and records placed before me.
The assessee has raised the following grounds of appeal:
“1. That on facts and circumstances of the case, the Ld. CIT(A) had erred both in law and on facts by confirming the order of the Assessing Officer in making an addition of Rs. 9,48,435/- being disallowance of the deduction claimed u/s 80P of the Income Tax Act, 1961.
2. That the Ld. CIT(A) has further erred in confirming the addition made by AO without going into the reasonable cause of delay in filing of return.
3. That the assessee craves leave to add to amend and or withdraw any ground on or before the time of hearing.”
Facts in brief are that the assessee is agricultural marketing society. The e-return of income was belatedly filed on 18-07-2020 declaring NIL after claiming deduction u/s. 80P of the I.T Act, 1961 of Rs.9,48,435/-. Return was processed by Centralized Processing Center, Bangalore and vide order dt. 10-09-2020 the I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. claim of deduction u/s. 80P of the Act was denied as the said e- return was filed belatedly. Income was assessed at Rs.9,48,440/-.
Aggrieved, the assessee preferred appeal before the ld. CIT(A) challenging the denial of deduction u/s.80P of the Act and stated that the delay in filing the return was on account of two reasons, firstly, assessee’s accountant left midway without informing and handover of pending duties and secondly, it took long time to reset login password, which was necessary to file e- return. However, the ld. CIT(A) was not satisfied with the reasons and in view of provisions of section 80AC of the Act denied the deduction u/s. 80P of the Act as the assessee has not filed return of income before the due date as specified in sub-section(1) of section 139 of the Act.
Aggrieved, now the assessee is in appeal before this Tribunal.
The Ld. DR vehemently argued supporting the order of the ld. CIT(A).
I have heard the ld.DR and carefully perused the record. Assessee is dissatisfied with the denial of deduction u/s. 80P of the Act by ld. CIT(A) by applying the provisions of section 80AC of the Act. The undisputed facts remains that the assessee filed belated e-return on 18-07-2020 for the AY 2019-20, which was beyond the due date prescribed u/s. 139(1) of the Act. As per amendment brought in by Finance Act, 2018 w.e.f 1-4-2018 in section 80AC of the Act, as per clause (ii) of the said section on or after first day of April, 2018, no deduction is admissible under I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. any provisions of Chapter VIA of the Act unless the assessee furnishes return of income for such assessment year on or before the due date specified under sub-section (1) of section 139. Therefore, the assessee in order to claim deduction u/s. 80P of the Act was required to file the return before the due date as specified in sub-section (1) of section 139 of the Act.
Now, on perusal of the impugned order, I find that the assessee has stated to have faced genuine hardship, which prevented it to file the return of income before the due date. Relevant extract of submissions made by the assessee before the ld. CIT(A) is reproduced herein below:-
“In the instant case, the assessee's accountant had left midway without informing and handover of pending duties. As the society is a farmers agricultural produce marketing Cooperative, the Board Members are ignorant about the nitty-gritty of the laws. It is only when the matter was brought to the knowledge of the Board, they had taken a resolution on 03-02-2020 to appoint tax advocate Shri Chiranjib Saha to prepare and file the return at the earliest. It was also later on observed that the login credentials of the income tax e-filing portal was not available with the assessee and the ex-accountant who used to file the return had not given it to anyone. The appellant was left with no other option but to contact Income Tax e-filing web managers to password. After several communications with them, submitting various documents as requested by them, finally vide their mail dt. 14th July, 2020, they had reset the password by providing your appellant new set of login credentials. It is a general principle and also rights given by the Constitution of India that before any disallowance a right of hearing and also genuine cause of delay should have been ascertained by the Assessing Officer. However, no opportunity of being heard was given.
I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. The above facts was the real cause of delay which is beyond assessee’s control. Assessee had taken all reasonable steps to procure the new password and file return at the earliest.”
The assessee further relied on plethora of judgments in support of its contention that there was reasonable cause which prevented the assessee to file e-return before the due date. I, however, find difficult to accept this contention of the assessee since provisions of section 80AC of the Act are very clear and unambiguous, and in my humble understanding there is no provisions under the Act, which provides me the power to condone such kind of delay in filing return of income, which has happened in the instant case. However, as per provisions of section 119(2)(c) of the Act the Central Board of Direct Taxes (CBDT) has the power to do so and relevant provision is reproduced below:-
Section 119 (1) *** *** *** *** *** *** (2)(a) & (b) *** *** *** *** *** *** (c) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the following conditions, namely:- (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and (ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed:
I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament.] 12. On perusal of the above sub-section (2) of section 119, I observe that The Board (CBDT) has the power to condone such delay. In the instant case the assessee faced genuine hardship, which mainly arised on account of resetting of login password, which is necessary for e-filing the return. I also observe that the genuineness of claim of the assessee regarding deduction u/s. 80P of the Act has not been examined and the claim was denied merely for delay in filing e-return. It will certainly create hardship to the assessee if such claim which may be a genuine claim is denied for this technical error. I, therefore, in the interest of justice restore the issue to the file of the ld.AO and direct him to place the application of assessee of having faced genuine hardship to file e-return of income before the due date as per provisions of section 139(1) of the Act, before the Board(Central Board of Direct Taxes(CBDT) for considering the same and in case the ‘Board’ decides in favour of the assessee, then the claim of assessee u/s. 80P of the Act may be examined on merits in accordance with law. I also direct the assessee to file necessary documents and application as referred above before the ld.AO. Needless to mention that adequate opportunity of being heard is to be granted to the assessee.
I.T.A. No.: 504/Kol/2021 Assessment Year: 2019-20 Nakashipara Thana Co-Operative Agril Marketing Society Limited. प�रणामत: �नधा�रती क� अपील सांि�यक� उ�दे�य से मंजूर क� जाती है। 13. In the result, the appeal of the assessee is allowed for statistical purpose. आदेश खुले �यायपीठ म� �दनांक …-09.2022 को उ�घो�षत। Order pronounced in the open court on 08-09-2022