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Facts
The assessee filed its return of income for AY 2011-12 on 30.09.2011, claiming a deduction of Rs.9,54,690 under Chapter VIA. The return was processed under section 143(1) on 16.02.2012, and an intimation was generated assessing business income at Rs.25,16,259 instead of Rs.9,54,695, resulting in a demand of Rs.8,97,070. The assessee filed an appeal before the First Appellate Authority (FAA) on 10.04.2021, which was beyond the prescribed time limit. The FAA dismissed the appeal in limine due to the delay and lack of condonation request.
Held
The Tribunal noted that the reasons for the delay in filing the appeal before the FAA were submitted for the first time before the ITAT. Therefore, the Tribunal decided to remit the issue of delay to the FAA for fresh consideration. The FAA is directed to dispose of the appeal within six months after providing the assessee with a reasonable opportunity to be heard.
Key Issues
Whether the delay in filing the appeal before the First Appellate Authority (FAA) should be condoned, and if so, the FAA should decide the appeal on merits. The ITAT remitted the issue of delay back to the FAA for fresh consideration.
Sections Cited
143(1), Chapter VIA, 80P(2), 249(2), 226(3), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SMT. BEENA PILLAI & SHRI LAXMI PRASAD SAHU
Per Laxmi Prasad Sahu, Accountant Member
This appeal is filed by the assessee against the order dated 30.01.2023 of the CIT(Appeals), National Faceless Appeal Centre, Delhi [NFAC], for the AY 2011-12.
Briefly stated the facts of the case are that the assessee filed return of income on 30.9.2011 declaring total income of Rs.2,24,580 after claiming deduction u/s. Chapter VIA of Rs.9,54,690 and return was processed on 16.2.2012 and intimation was generated. Accordingly, business income was assessed at Rs.25,16,259 instead of Rs.9,54,695 as declared by the assessee in its return of income. Resultantly there was a demand of Rs.8,97,070.
Against intimation u/s. 143(1), the assessee filed appeal before the First Appellate Authority (FAA) on 10.4.2021. The ld. FAA noted that assessee has filed appeal beyond time with unusual delay and without any request for condonation. Accordingly notice was issued to the assessee to remove the deficiency giving 15 days time from 23.12.2022. There was no response from assessee’s side, accordingly the FAA did not condone the delay and dismissed the appeal in limine. Aggrieved, the assessee is in appeal before the ITAT which is also time barred by 436 days.
The ld. AR reiterated the contents of the affidavit as reasons for delay in filing the appeal before the FAA as well as the ITAT. For the sake of convenience, we are reproducing the same as under:-
The ld. DR relied on the order of lower authorities and submitted that assessee should have filed the appeal within due date as per section 249(2) of the Act. However the assessee filed appeal with delay of 3342 days before the FAA and 436 days before the ITAT. The reasons stated by the assessee are not acceptable. The return was processed on 16.2.2012 and communication sent to the assessee, but the assessee is denying receipt of such communication. He further submitted that as per Form 35 at sl.no.2(b)&(c) the date of order and service of order is 16.2.2012, therefore intimation was served on 16.2.2022 and the contention raised through affidavit is wrong. The ld. FAA also gave opportunity to the assessee for explaining the reasons for delay and time was granted for 15 days and there was no such explanation received from the assessee. Therefore, he strongly objected for admitting the appeal as well as stay petition filed by the assessee.
Considering the rival submissions, we note that the assessee is a co-operative society registered under Karnataka Co-operative Societies Act, 1959 and the main object of the assessee is to provide credit facilities to its members. It filed return of income claiming deduction under Chapter VIA of Rs.9,54,696 u/s. 80P(2)(a)(i) of the Act which was denied by the CPC and return was processed on 16.02.2012. Appeal was filed before the FAA with delay of 3342 days and 436 days before the ITAT. However, the assessee has filed affidavit dated 25.6.2024 explaining the reasons for the delay before the FAA and ITAT. We have gone through Form 35 and note that date of service of intimation is 16.2.2012 and at para 14 of Form 35 assessee has mentioned “we will file a detailed application by way of an Affidavit at the earliest”. During the course of proceedings before the FAA the assessee did not file any affidavit explaining the reasons for delay. However, the assessee has filed detailed reasons through affidavit before the ITAT. The FAA has given notice for explaining the reasons and allotted time for 15 days from 23.12.2022, but the assessee did not file any affidavit. Since the reasons for the delay have been filed before us for the first time, we are of the view that the delay in filing the appeal before the FAA should be decided at the level of the First Appellate Authority (FAA). Accordingly, we remit this issue back to the file of FAA for fresh consideration with a direction to dispose of the appeal within six months from the date of receipt of this order after giving reasonable opportunity to the assessee. Since the income tax department has issued notice u/s. 226(3) of the Act, the assessee is directed to cooperate with the proceedings before the FAA. We make it clear that we have not condoned the delay in filing the appeal at any stage.
During the course of hearing with the consent of both the parties, it was pronounced that the stay petition filed by the assessee becomes infructuous.
In the result, the appeal of the assessee is allowed for statistical purposes and stay petition is disposed of accordingly.
Pronounced in the open court on this 27th day of August, 2024.