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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH
Before: Ms. Annapurna Gupta
Appellant by : Shri Parimalsinh B. Parmar, A.R. Respondent by : Shri Purushottam Kumar, Sr. D.R. Date of hearing : 13-01-2022 Date of pronouncement : 31-01-2022 आदेश/ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:-
The present appeal has been filed by the Assessee against the order passed by the Commissioner of Income Tax (Appeals)-8, Ahmedabad, (in short referred to as CIT(A)), dated 19-03-2019, u/s. 250(6) of the Income Tax Act, 1961(hereinafter referred to as the “Act”) pertaining to Assessment Year (A.Y) 2016-17.
2. The appeal is delayed for filing by 54 days. An application seeking condonation of the delay was filed before us stating that it was on account of default of the Chartered Accountant of the assessee that the delay occured since he forgot to hand over the order to the concerned advocate for filing the appeal after the assessee Page No 2 Veeda Clinical Research Pvt. Ltd. vs. DCIT had given him the order for doing so. This default of the Chartered Accountant was owned up by him on oath by way of an affidavit filed before us dated 29th November 2021, the contents of which are reproduced hereunder: AFFIDAVIT I, Kuntal Pradip Shah, aged 38 years, residing at 56. Niharika Bungalows, Nr. Azad Society, Ambawadi, Amedabad, do hereby solemnly affirm and state on oath as under:- 1. I am a Chartered Accountant by profession. The order passed by the learned Commissioner of Income-tax (Appeals) in the case of "Veeda Clinical Research Pvt. Ltd." for Assessment Year 2016-17 was received on 02.04.19 and therefore, appeal before Your Honors was required to be filed on or before 01.06.19. However, appeal came to be filed on 25.07,19 and thus, there is a delay of 54 days in filing the appeal before Your Honors. The reasons for the said delay are:
a) The impugned order passed by the Ld. CIT(A) was handed over by the assessee (i.e. Veeda Clinical Research Pvt. Ltd.) to me for passing on the same to the concerned Advocate for filing appeal before Hon'ble the Income Tax Appellate Tribunal. However, inadvertently, I forgot to pass on such order to the concerned Advocate. b) Quite some time late, when the concerned assessee (i.e. Veeda Clinical Research Pvt. Ltd.) inquired as to the status of ITAT appeal, I realized that the impugned order was not passed on for filing an appeal before Your Honors. Upon such facts coming to the knowledge of the assessee, the impugned order was immediately forwarded to the concerned Advocate along with other relevant documents who, in turn, prepared Form No.36 along with Grounds of Appeals and forwarded the same to assessee for signature. Shortly thereafter, the present appeal came to be filed. In the mean-time, there occurred delay, as stated above, in filing the appeal.
2. Under such circumstances, delay in filing appeal is mainly on account of the fact that I, inadvertently, forgot to pass on the impugned order to the concerned advocate for Page No 3 Veeda Clinical Research Pvt. Ltd. vs. DCIT preparing an appeal against the same. Hence, it is prayed to Your Honors that there is good and sufficient reason to condone the delay and therefore, delay in filing the appeal may kindly be condoned and appeal may kindly be decided on merits.
I, Mr. Kuntal Pradip Shah, B.Com, FCA, the above named deponent, do hereby verify that the contents of aforesaid paras of this affidavit are true to my personal knowledge; nothing has been concealed and no part of it is false. So help me God.
Learned Counsel for the assessee therefore stated that since there was no default of the assessee who had actively pursued his remedy of filing appeal before the ITAT and the delay was attributable solely to his Chartered Accountant, he should not be punished for the same and the delay accordingly be condoned,it was prayed.
The ld. D.R. did not object to the same.
In view of the above, since the delay in the filing of the appeal is of a small period of 54 days only that too not attributable to the assessee being solely on account of default of the Chartnered Accountant of the Assessee who has admitted to have forgotten to take necessary steps for filing the appeal after the order of the Ld. CIT(A) was handed over to him for doing the same, interest of justice demands that the delay be condoned. The delay was accordingly condoned and the order pronounced in the open court. The hearing in the appeal was thereafter proceeded with.
The assessee has effectively raised 5 grounds of appeal as under:
The learned CIT(A) has erred both in law and on the facts of the case in confirming the action of the AO of disallowing employee's contribution towards PF and ESIC amounting to Rs.4,46,686/- u/s 36(1 )(va) r.w.s.2(24)(x) of the Act.
Page No 4 Veeda Clinical Research Pvt. Ltd. vs. DCIT
Alternatively and without prejudice to the above, the matter should be remanded to the AO to verify whether the sum was deposited within 21 days from the end of the month of payment of salary as contemplated under the provisions of Employees Provident Funds & Miscellaneous Provisions Act, 1952 and Employees State Insurance Act, 1948.
3. Both the lower authorities have passed the orders without properly appreciating the facts and they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed.
4. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in levying interest u/s.234A/B/C of the Act.
5. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in initiating penalty u/s.271(l)(c) of the Act.
7.. During the course of hearing,the Ld. Counsel for the assessee, at the outset itself pointed out that solitary issue related to addition made to the income of the assessee on account of delayed payment of employee’s contribution to ESIC and PF, as per the provisions of Section 36(1)(va) of the Act, amounting to Rs. 4,46,686/-. Ld. Counsel for the assessee farirly admitted that the issue was squarely covered against the assessee by the judgment of the Hon’ble Jurisdictional High Court in the case of CIT vs. GSRTC (2014) 366 ITR 170 (Guj.)
In view of the above since admittedly the issues stand covered against the assessee by the decision of the Jurisdictional High Court in the case of GSRTC (supra) which has also been followed by the ld. CIT(A) while dismissing the assessee’s appeal,we Page No 5 Veeda Clinical Research Pvt. Ltd. vs. DCIT have noted, We see no reason to interfere in the order of the Ld. CIT(A) upholding the addition made to employee’s contribution to ESIC and PF deposited delayed amounting to Rs. 4,46,686/-. The appeal of the assessee is therefore dismissed. Since no other arguments made by the Ld. Counsel for the assessee before us, all the grounds raised by the assessee are dismissed.
In effect, appeal of the Assesee is dismissed.