Loading judgment…
Facts
The assessee filed appeals against the orders of the National Faceless Appeal Center (NFAC) for AY 2019-20, 2020-21 & 2021-22. There was a delay in filing these appeals, attributed to the negligence of the previous tax consultant. The appeals involved facts and issues related to a disallowance/addition for delayed deposit of employees' contribution to PF & ESI.
Held
The Tribunal condoned the delay in filing the appeals, considering the reasons genuine and unintentional. The Tribunal also noted that the assessee failed to file submissions before the Ld. Commissioner and decided to remand the case for a fresh decision, providing one last opportunity. For the other appeals, it was observed that the Commissioner failed to decide various grounds raised by the assessee.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the matter should be remanded for fresh adjudication on merits due to non-compliance by the assessee and failure of the lower authority to decide all grounds.
Sections Cited
250, 143(1), 36(1)(va), 37(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, NAGPUR BENCH “SMC”, NAGPUR
Before: SHRI NARENDER KUMAR CHOUDHRY
Per : Narender Kumar Choudhry, Judicial Member:
These appeals have been preferred by the Assessee against the orders dated 19.09.2024, 13.09.2024 & 19.09.2024 impugned herein, passed by the National Faceless Appeal Center (NFAC) (in short Ld. Commissioner) u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2019-20, 2020-21 & 2021-22 respectively.
All the three appeals are having involved facts and issues, except variation in amounts and therefore for the sake of brevity, the same were heard together and are being disposed of by this composite order by taking into consideration the facts and circumstances and issues involved in as a lead case and result of the same would-be applicable mutatis mutandis to all the threes appeals under consideration.
In the instant case, there is a delay of 144 days in filing the appeal, on which the Assessee by filing an affidavit, contended as under: “1. That I am a resident individual and engaged in the business of Providing Security Services. I have filed return of income for AY 2020-21 declaring total income Rs.11,17,160.
2. I say that, I have received the adjustment order u/s 143(1) of the Income Tax act, 1961 ("the Act") from the CPC Proposed addition of Rs.12,95,766 and raised demand for Rs.1,83,110.
. Aggrieved by the order passed by the CPC, I filed an appeal before CIT(A) on 23-04-2022.
4. Thereafter Hearing notices were issued by CIT(A) and all of them went unanswered, reason being non-responsive nature of our tax consultant and I was not aware of such Nature of Tax Consultant. Subsequently Order was passed by CIT(A) as on 13- 09-2024.
5. I was entirely unaware of both the notices and the order due to the negligence and lack of responsiveness of our previous tax consultant. I became aware of the situation only after recently appointing a new tax consultant, who informed me that the CIT(A) had upheld the CPC intimation order and issued an order under Section 250 of the Act.
6. I say that, as soon as the order came to my attention, I took immediate steps to file the appeal before your Honors. The delay was unintentional and arose due to circumstances beyond my control.
7. Due to the aforementioned circumstances, the appeal (Form 36) has been submitted with a delay of 145 days. Therefore, it is earnestly prayed that this application be allowed, the delay in filing the appeal be condoned, and the matter be heard on its merits in the interest of justice.”
Though the Ld. D.R. refuted the claim of the Assessee qua condonation of delay, however, this Court by considering the reasons stated by the Assessee for condonation of delay as genuine, bonafide and unintentional, is inclined to condone the delay, thus the delay is condoned.
Coming to the merits of the case, it is observed that there was delay in depositing the employees’ contribution to PF & ESI u/s 36(1)(va) of the Act to the tune of Rs. 37,16,451/- which resulted into making the disallowance/addition by the Assessing Officer (AO)/CPC vide assessment order dated 01.03.2021 u/s 143(1) of the Act and therefore the Assessee, being aggrieved, challenged the impugned order by filing instant appeal before this Court, however, despite of affording opportunity by sending notice for the date of hearing on 27.06.2025, neither made any compliance nor filed any adjournment. And therefore, in the constrained circumstances, this Court is inclined to appoint Smt. Veena Agrawal, Ld. CA as Amicus Curiae for assistance of this Court, who has submitted that in the interest of justice and for just and proper decision of the case, as the Assessee failed to file the relevant submissions/documents before the Ld. Commissioner, therefore one last and final opportunity may be provided, so that the real justice would be met.
On the contrary, the Ld. D.R. refuted the claim of the Ld. Amicus Curiae.
Admittedly, the Assessee remained to be represented before the Ld. Commissioner and did not file his submissions and replies in the context of the challenge of the disallowance/addition under consideration. Though the decision of the authorities below, prima- facie appears to be against the Assessee, however, considering the principle of natural justice, as urged by the Ld. Amicus Curiae, this Court is inclined to remand the instant case to the file of the Ld. Commissioner for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee.
Thus, the case is accordingly remanded to the file of the Ld. Commissioner for decision afresh accordingly.
The Assessee is also directed to file the relevant submissions/documents as would be essentially required for proper and just decision of the case. It is clarified that in case of subsequent default, the Assessee shall not be entitled for any leniency.
In the result, the Assessee’s appeal is allowed for statistical purposes.
268/Nag/2025, it is observed that though in these cases, the Assessee had furnished the written submissions in support of his claim, however, it is a fact that the Ld. Commissioner failed to decide various grounds raised by the Assessee and therefore in the interest of justice, this Court is also inclined to remand these cases for adjudication of the other grounds raised by the Assessee, such as not treating the expenditure as allowable u/s 37(1) of the Act etc.
In the result, all the three appeals of the Assessee under consideration, are allowed for statistical purposes.