M/S RATNADEEP MULTITRADE PRIVATE LIMITED,MUMBAI vs. INCOME TAX DEPARTMENT, NFAC, MUMBAI

4. It is further submitted that meanwhile, notice under section 148 of the Act was issued and an assessment order under section 144B r/w section 147 of the Act was passed on 30/03/2022. In further appeal, the learned CIT(A), vide impugned order dismissed the appeal filed by the assessee by treating the same as infructuous on the basis that the assessee has opted for settlement of tax dispute under VSV Act and pursuant thereto Form No. 5 has been issued. The assessee submitted that it was not eligible to make an application under the VSV Act against the assessment order passed on 30/03/2022, however, the aforesaid fact could not be brought to the notice of the learned CIT(A) as the impugned order was passed and the tab to file any reply was closed on the M/s. Ratnadeep Multitrade Pvt. Ltd. ITA no.3561/Mum./2023 portal. The assessee further submitted that its earlier tax consultant was following up with the office of PCIT-1, Mumbai to communicate with the NFAC for restoration of the appeal. It is further submitted that while preparing for appeal for the assessment year 2015-16 the new tax consultant advised the assessee to file the appeal before the Tribunal. It is submitted that immediately thereafter the present appeal was drafted and filed before the Tribunal. Accordingly, it was submitted that due to the aforesaid circumstances the present appeal is filed after a delay.

5. We find that the reasons stated by the assessee for seeking condonation of delay fall within the parameters for grant of condonation laid down by the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag Vs. MST Katiji and others: 1987 SCR (2) 387. It is well established that rules of procedure are handmaid of justice. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In the present case, the assessee does not stand to benefit from the late filing of the appeal. In view of the above and having perused the application, we are of the considered view that there exists sufficient cause for not filing the present appeal within the limitation period and therefore, we condone the delay in filing the appeal by the assessee.

6. From the submissions made by the assessee in its application seeking condonation of delay and the documents forming part of the paper book, we find that the assessee’s application in Form-1 under the VSV Act was in respect of the order dated 19/12/2019 passed by the coordinate bench in assessee’s appeal for the assessment year 2013-14. The aforesaid application was accepted and Form-5 dated 03/03/2022 was issued by the learned PCIT in respect of full and final settlement of tax arrears under section 5(2) r/w section 6 of the VSV Act. It is not anybody’s case that the assessee was entitled to file an application under the VSV Act against the assessment order dated 30/03/2022 passed under section 147 r/w section 144B of the Act. Such being the facts, we are of the considered view that the learned CIT(A) erred in dismissing the appeal filed by the assessee against the aforesaid assessment order dated 30/03/2022 as infructuous on the basis that the assessee has M/s. Ratnadeep Multitrade Pvt. Ltd. ITA no.3561/Mum./2023 opted under the VSV Act. Accordingly, the impugned order passed by the learned CIT(A) is set aside. Since the learned CIT(A) has not adjudicated the grounds raised by the assessee in its appeal, therefore we deem it appropriate to restore the appeal to the file of the learned CIT(A) for adjudication on merits. Accordingly, the grounds raised by the assessee are allowed.