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Facts
The assessee, a cooperative bank, appealed an assessment order. The first appellate authority (CIT(A)) dismissed the appeal ex-parte due to a delay in filing, without condoning it or going into the merits. The assessee attributed the delay to the serious illness of an employee responsible for filing.
Held
The Tribunal noted that the CIT(A) dismissed the appeal ex-parte and in limine without condoning the delay, despite the assessee providing reasons related to employee illness. The Tribunal restored the matter to the CIT(A) to decide on merits after providing another opportunity to the assessee.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal ex-parte and in limine without condoning the delay, and whether the reasons provided by the assessee for the delay constituted sufficient cause.
Sections Cited
36(1), 271(1)(c)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No. 283/JP/2025
ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal filed by the assessee is directed against the order of the ld. CIT(A)-4, Jaipur dated 29-12-2023 for the assessment year 2013-14 raising therein following grounds of appeal. ‘’1. That the ld. CIT(A) has erred both in fact and law.
1. 2. That the ld. CIT(A) has erred in upholding the order passed by assessing officer wherein the assessing officer rejected the claim of provision towards depreciation on valuation of government securities of Rs.3,88,144/-.
INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR 3. That the ld. CIT(A) has erred in upholding the order passed by assessing officer wherein the assessing officer rejected the claim of provision for education reserve of Rs.1,23,501/-.
That the ld. CIT(A) has erred in upholding the order passed by assessing officer wherein the assessing officer disallowed the claim of Rs.16,39,157/- on the fixed asset purchased by the assessee. He has further erred in holding that purchase of fixed assets made from 8 parties as mentioned in the assessment order is bogus.
The assessee craves leaves to add, alter, amend, modify substitute, delete and /or rescind all or any ground of appeal
on or before the final hearing, if necessary so arises.’’ 2.1 At the outset of hearing of the appeal of the assessee for the assessment year under consideration, the Bench noticed that there is delay of 362 days in appeal for which the assessee has filed application for condonation of delay with the prayer to condone the delay. The relevant submission as made in the application for condonation of delay is as under:- ‘’….The relevant facts of the case are that the impugned order of the CIT(A)-4, Jaipur in the assessee’s case was passed on 29- 12-2023.Hence, the appeal to the worthy ITAT had to be filed on or before 01-03-2024. The person authorized to receive the mail and whose e-mail is given to the Income Tax Department is one Shri Dilip Maheshwari, employee of Bank. Shri Maheshwari unfortunately suffered from cardiac problem righty since Nov. 2023. He was hospitalized for the purpose of angiography on 7-12-2023. He remained admitted in hospital till 9-12-2023 and in that duration after angiography he was diagnosed with blockage of arteries leading to a stent being put in his artery. Then again he continued to complain of INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR breathlessness and anxiety because of which he was again hospitalized, underwent a second angioplasty on 06-01-2024 and then a second stent was put in his arteries. He was discharged from hospital on 07-01-2024. Discharge summary of the hospitalization is enclosed as annexure C. Due to his continued bad health at a comparative young age of around 50 years that his family life as well as his professional life was highly disturbed. It was in this period of stress that Shri Maheshwari received the order dated 29-12-2023. He misplaced it somewhere and indeed completely forgot about it. The impugned order was remembered only when the notice of penalty u/s 271(1)© was received by him on behalf of the bank. It is further submitted that in the present case it is clear that the mistake was committed by the office of the appellant. The appellant was ignorant of the fact that an order of the ld. CIT(A)-4, Jaipur had been passed on 29-12-2023. He was under the belief that the appeal was still pending before the ld. CIT(A). He had no vested interest in filing the appeal late. It is further submitted that it is clear that on these facts that the appellant was not knowing that the appellate order had been passed by the ld. CIT(A)-04, Jaipur. There was no attempt to deliberately delay filing the said appeal, that the error was on the part of his employees authorized to access the mails/ orders received from the Income Tax Department. It is also clear that as soon as the error came to the notice of the appellant and the present A/R, they took steps to verify the correct facts. They are now filing the appeal again at the right place. The Hon’ble ITAT has the duty of hearing appeals and not rely on technicalities to dismiss the same. No mala fide can be attached to the delay especially since the appellant is keen to pursue the appeal. It is therefore, requested that the Hon’ble ITAT may condone the delay of 362 days in filing this appeal and hear the appeals on merits. Few Case laws submitted are as under:-
1. Collector, Land Acquisition vs MST Katiji (1987) 167 ITR 471 INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR
2. State of West Bengal vs Administrator, Howrah 1972 AIR 749, 1972 SCR (2) 874
3. Vedabhai alias Vaijaynatabhai Baburo Patil vs Shantaram Banurao Ptail[2002] 253 ITR 798 (SC)
4. E-Governnance Society vs CIT (E) [2019] 261 Taxman 289 (Himachal Pradesh) – when asessee sent documents to counsel to file appeal, but counsel had taken no steps, delay in filing appeal was to be condoned though there was some negligence on part of assesseee in following up matter. To this effect, the assessee filed an affidavit of his employee Shri Dilip Kumar Maheshwari who accepted in the affidavit that the delay is totally due to his negligence caused by preoccupation of his bad health. Thus the ld. AR of the assessee prayed to condone the delay. 2.2 On the other hand, the ld. DR submitted that there is an inordinate delay in filing the appeal by the assessee, however, the court may decide the issue as deemed fit and proper in the case. 2.3 After hearing both the parties and perusing the materials available on record, the Bench feels that there is merit in the prayer of the assessee and the assessee is prevented by sufficient cause as his staff was suffering from serious ailments Hence, in this view of the matter, the delay is condoned and appeal is admitted. 3.1 Apropos grounds of appeal, it is noticed that the ld.CIT(A) has passed an ex-parte order by dismissing the appeal of the assessee with following observations.
INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR 5……It is important to state that the appellant has been selective in responding to the appeal notices and in the present appeal has not responded to the notices consciously as it is seen that in the other appeal of the appellant for the A.Y. 2011-12 pending vide Appeal No. CIT(A), Kota/10289/2017-18 the appellant has been responding to the notices issued by this office but has not filed submissions in response to the notices issued in the present appeal. The appellant was required to file the appeal on 24.04.2016 but the appeal has been filed on 14.06.2016 and as such there is a delay of 51 days. The appellant has not explained the delay along with any supporting documents and evidence. The appellant has also not shown along with supportings that the delay was bonafide. It is not the case of the appellant that it was prevented by emergency causes from filing of the appeal. In column no. 14 in Form 35, the appellant has stated there is no delay in filing of appeal. There is no request to condone the delay. In view of this discussion, the delay is not condoned and the appeal is not admitted and the same is dismissed in liminie 6. In the result, the appeal of the appellant is dismissed.
3.2 During the course of hearing, the ld. AR of the assessee submitted that the appeal needs to be set aside and the ld. CIT(A) be directed to hear the appeal on merits. To support his submissions, the ld. AR of the assessee has advanced the following written submission. ‘’ The humble Appellant respectfully submits as under:-
INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR 1 That the assessee is a co-operative bank operating out of Jaipur It filed its return of income for A.Y. 2013-14 on 29.09.2013 declaring total income of Rs 33,90,150/- This case was selected for scrutiny. After conducting hearings. the Assessing Officer passed an assessment order on 22.03.2016 computing the taxable income as follows: a) Returned Income Rs. 33,90,150.00 b) Add: Excess deduction disallowed Rs. 1,17,030.00 u/s 36(1) (via) Excess deduction disallowed Rs. 87,854.00 u/s 36(1) (viii) Provision for statutory reserve Rs. 30,87,547.00 Provision for Bad & Doubtful Reserve Rs. 12,35,018.00 Provision for education reserve Rs. 1,23,501.00 Provision for Govt. Securities Rs. 3,88,144,00 Total Rs. 48,34,210.00 c) Excessive depreciation claimed Rs. 16,39,157.00 Grand total of taxable income Rs. 1,00,68,401.00 A copy of the said assessment order is annexed with the appeal filed.
Aggrieved of this order, the assessee went in appeal before the CIT(A)-04, Jaipur. He passed his appellate order on 29.12.2023. In it he stated that the appeal had to be filed by or on 24.04.2016 but it was actually filed on 14.06.2016, that is, there was a delay in filing appeal of INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR 51 days. Stating that the assessee had not complied with notices dated 27.07.2017, 01.11.2022, 24. 11.2023, 11.12.2023 and 22.12.2023, he concluded that there was no evidence on record to explain the delay in filing the appeal, hence the delay was not condoned. He dismissed the appeal as not admitted, in limine. In the result, the appeal was dismissed. Hence, the present Appeal before the hon'ble ITAT.
Preliminary Observations: A. Condonation of Delay: The present appeal had to be filed by or on 01.03.2024 but has been actually filed on 25.02.2025. Hence, it is delayed by 351 days. The reasons for the delay have been mentioned in the application for condonation of delay filed along with the Appeal. An affidavit of Shri Dilip Maheshwari, the employee responsible for filing the appeal has also been filed along with the Form No.
That may be considered. It is not the case where the assesse has deliberately filed the appeal late or had some vested interest in delaying the filing of the Appeal. The detailed reasons for delay in filing the appeal may kindly be considered and delay condoned in the interest of justice. B. Merits of the case: i)A perusal of the order of the CIT(A) will show that the CIT(A) has dismissed the appeal in limine, since, according to him the appeal before him was filed late, on 14.06.2016 when the appeal had to be filed by or on 24.04.2026, a delay of 51 days. The CIT(A) did not condone the delay on account of there being no submissions about the delay, its cause, and an application INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR for condoning the delay. He did not go into the merits of the case at all. The assesse states that the worthy CIT(A) erred in holding that the appeal had been filed late without an application being made to condone the delay, or mentioning any reasons, or offering any explanation for the same. C. The CIT(A) it seems proceeded on an erroneous reading of the documents before him. He relied on the date of uploading of the return of income Actually, a hard copy of the Appeal Form No. 35 had been filed with the CIT(A) on 19th April, 2016 As proof thereof, the assesse is filing a copy of the Form No. 35 filed on 19.04.2016 bearing the signatures of receipt of the same in the office of CIT(A), Rajasthan -01 Hence the appeal was filed very much before time, hence there was no delay. The CIT(A) erred in dismissing the appeal in limine when he should have heard the appeal on merits. A copy of the said Form no. 35 is annexed herewith and marked as Annexure R D. The CIT(A) also erred in holding that the assesse did not respond to the various notices sent by him for hearing. The documents which are now being filed as Annexure B (colly.) show that the assessee's A/R had moved application for adjournment and had also filed submissions on merits. Therefore, the order of the CIT(A) needs to be set aside and he may be directed to hear the appeal on merits. It is also worthwhile to mention here that the additions made by the ITO in the assessee's, except the last are covered by the decision of this very Tribunal for A.Y 2011-12. A copy of this order of the ITAT is being annexed as Annexure C. Only the addition on account of fixed assets was not there in the earlier years. The arguments advanced before the Assessing Officer, which INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR are part of the assessment order, may be considered and adjudicated on.’’ Further, the ld AR of the assessee has filed following documents as mentioned in the inedex. S.N. Particulars Page Nos.
Anexure A:Copy of Form No. 35 5 to 5A 2. Annexure B: Documents filed before CIT(A) 6 to 18 3. Annexure C: copy of order of ITAT for A.Y. 19-45 2011-12 in the case of Integral Urban Cooperative Bank Ltd vs ACIT (ITA Nos. 809/JP/2015 and 1075/JP/2018) A.Y. 2011-12 and 2012-13, date of order 14-05-2019 3.3 On the other hand, the ld. DR supported the order of the ld. CIT(A). 3.4 We have heard both the parties and perused the materials available on record. From the record, it is noticed that the ld. CIT(A) has passed an ex-parte order giving the multiple opportunities to the assessee to substantiate its case but the assessee had not filed the submissions in response to the notices issued in the present appeal. It is also noticed that the assessee did not make request for condonation of delay before the ld. CIT(A) and thus he did not condone the delay and not admitted the appeal and thus dismissed the appeal in limine. In the written submission at para C, the ld. AR of the submitted that there is no delay made from his side in filing the appeal before the ld. CIT(A) whose contents are as under:- ‘’C. The CIT(A)- it seems proceeded on an erroneous reading of the documents before him. He relied on the INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR date of uploading of the return of income Actually, a hard copy of the Appeal Form No. 35 had been filed with the CIT(A) on 19th April, 2016 As proof thereof, the assesse is filing a copy of the Form No. 35 filed on 19.04.2016 bearing the signatures of receipt of the same in the office of CIT(A), Rajasthan -01 Hence the appeal was filed very much before time, hence there was no delay. The CIT(A) erred in dismissing the appeal in limine when he should have heard the appeal on merits. A copy of the said Form no. 35 is annexed herewith and marked as Annexure A D. The CIT(A) also erred in holding that the assesse did not respond to the various notices sent by him for hearing. The documents which are now being filed as Annexure B (colly.) show that the assessee's A/R had moved application for adjournment and had also filed submissions on merits. Therefore, the order of the CIT(A) needs to be set aside and he may be directed to hear the appeal on merits.’’ The Bench noticed that it is an admitted fact that the assessee is ex-parte before the before the ld. CIT(A). Therefore, the assessee could not put forth its defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing its case. However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity INTEGRAL URBAN COOPERATIVE BANK VS ACIT, CIRCLE-1, JAIPUR of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 3.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 4.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 03/06/2025.