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Facts
The assessee's appeal was dismissed in limine by the Additional CIT(A) due to a delay of 318 days. The assessee contended that the delay was due to the negligence of their previous counsel. The Tribunal noted that while the delay was significant, it was restoring the matter to the CIT(A) to decide on merits.
Held
The Tribunal condoned the delay in filing the appeal before the CIT(A) and restored the matter to the file of the CIT(A) to decide the appeal afresh by providing one more opportunity of hearing. The assessee was cautioned against seeking frivolous adjournments.
Key Issues
Whether the delay in filing the appeal before the CIT(A) was condonable and whether the appeal should be decided on merits.
Sections Cited
249(3) of the I.T. Act, 1961, 250 of the I.T. Act, 1961, 143(1) of the I.T. Act, 1961
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 1138/JPR/2024
fu/kZkj.k o"kZ@Assessment Year : 2022-23 M/s.Star Developers cuke ITO, Vs. Ward 1 (4) Unnati Tower, Central Spine, Vidhyadhar Nagar, Jaipur 302 039 Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADOFS 4937 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri R.S. Poonia, CA Shri Rajat Choudhary, Advocate jktLo dh vksjls@Revenue by: Shri Gautam Singh Choudhary Addl.CIT lquokbZ dh rkjh[k@Date of Hearing : 09/10/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 09 /12/2024 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal filed by the assessee is directed against order of the ld. Addl. CIT(A), Patna dated 24-06-2024 for the assessment year 2022-23 raising therein following grounds of appeal. ‘’1. That on the facts and in the circumstances of the case Ld. CIT (Appeals), NFAC has erred in law in dismissing the appeal, which is wrong, unwarranted and bad in Law. Kindly quash the order passed by Ld. CIT(Appeals), NFAC M/s. Star Developers vs ITO, Ward 1(4), Jaipur
2. That on the facts and in the circumstances of the case Ld. CIT (Appeals), NFAC has erred in law in not allowing proper opportunity to appellant, which is wrong. unwarranted and bad in Law. Kindly quash the order passed by Ld. CIT(Appeals), NFAC.
3. That on the facts and in the circumstances of the case the Ld. CIT (Appeals), NFAC has not allowed the credit of TDS claimed by appellant as per 26AS is wrong, unwarranted and bad in law. Kindly allow the credit of TDS to appellant.
4. That on the facts and in the circumstances of the case Ld. CIT (Appeals), NFAC has erred in law and fact in disallowed the credit of TDS claimed by appellant as per 26AS without mentioning any reason while passing an intimation order u/s. 143(1) of the I.T. Act, 1961 which is wrong, unwarranted and bad in Law.
5. That on the facts and in the circumstances of the case Ld. CIT (Appeals), NFAC has erred in law and fact in confirmed the addition made by Ld. Deputy Director of Income Tax, CPC, Bangalore who have no authority to disallow the credit of TDS while passing an intimation order u/s. 143(1) of the I.T. Act, 1961.’’ 2.1 At the outset of hearing of the appeal, the Bench noticed that there is delay of 11 days in filing the appeal by the assessee for which the assessee has filed an application for condonation of delay with following prayer. ‘’1. That assessee-firm filed an appeal on 03-09-2024 against the ex-parte order passed by ld. Addl./JCIT (Appeals), Patna, u/s 250 of the I.T. Act,1961, order dated 24-06-2024,with a delay of 11 days.
M/s. Star Developers vs ITO, Ward 1(4), Jaipur 2. That the delay of 11 days of filing of appeal was due to delay in preparation and filing of appeal on account of our Counsel’s office which can be treated as reasonable cause.
That the same can be considered as a reasonable cause in filing of appeal before ITAT, Jaipur In view of above submissions, you are requested that kindly consider this as reasonable cause to condone the delay of 11 days so that proper inquiry can be conducted and substantial justice may be delivered to the appellant 2.2 To this effect, the assesee has filed an affidavit deposing the above facts. 2.3 On the other hand, the ld. DR submitted that the Court may decide the issue as deem fit and proper in the case. 2.4 The Bench heard both the parties and perused the materials available on record. The Bench noted that the submission as advanced by the ld. AR Shri R.S.Poonia as to condonation of delay of 11 days does not show sufficient cause. However, the Bench advises the ld.AR to remain vigilant in future in timely filing the appeal before ITAT. Thus the delay is condoned and appeal of the assessee is admitted.
M/s. Star Developers vs ITO, Ward 1(4), Jaipur 3.1 Apropos the ground of appeal of the assessee, the Bench noted that the ld. Addl.CIT(A), Patna has dismissed the appeal in limine of the assessee by observing as under:- ‘’4. Decision 4.1 I have gone through the facts of the case. As per the provisions of section 249(3) of the Act. There should be sufficient cause for the appellant for not presenting the appeal within the time allowed. The relevant provisions read as under:-
"The CIT(A) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.’’ Under section 249(3) of the Act, the appellate authority may, on good and sufficient reason for the delay being shown, admit an appeal after the expiry of the period of limitation. 4.2 On the issue of delay in filing the appeal, the appellant had not submitted any grounds for condonation of delay despite being given multiple opportunities. 4.3 In the case of Satbarg Singh v. Income-tax Officer, Ward-2 (3), Chandigarh [2015] 61 taxmann.com 46 (Chandigarh-Trib.), it was held that in condoning the delay the appellate authority must be satisfied that there has been due diligence on the part of the appellant and it was not guilty of negligence. The sufficient cause within the contemplation of these provisions must be a cause which is beyond the control of the party invoking the aid of the provisions, 4.4 In the instant case, the appellant had not submitted any grounds for condonation of delay of 318 days despite being given multiple opportunities. It has already been discussed M/s. Star Developers vs ITO, Ward 1(4), Jaipur above that for qualifying u/s 249(3) for condonation of delay, the appellant must show that it was diligent all along with taking appropriate steps and if it appears to be guilty of lapses or negligence, then it must be prepared to have his remedy barred without expecting condonation. 4.5 On the basis of the circumstances of the case, it is held that the appellant was not having any cause for delay in the filing the appeal. The appeal filed by the appellant is held to be invalid and non-maintainable being out of time. For statistical purposes, the appeal is treated as DISMISSED in-limine.
In the result, the appellant's appeal is DISMISSED.
3.2 During the course of hearing, the ld. AR of the assessee submitted that the case was not properly taken up by the earlier counsel of the asssessee and thus the assessee neither could file the appeal before the ld. CIT(A) nor could advance the submissions before the ld. CIT(A). He further prayed that the assessee may be given one more chance to contest the case before the ld.CIT(A) so that entire facts and documents shall be presented before the ld.CIT(A) in order to settle the dispute. 3.3 On the other hand, the ld.DR supported the order of the ld.CIT(A) but submitted that the court may decide the issue as deem fit and proper in the case. 3.4 The Bench heard both the parties and perused the materials available on record. In this case, it is noticed that the ld. Addl. CIT(A) passed the ex-parte order treating it non-maintainable being it out of time. It is also noticed that the ld. AR of M/s. Star Developers vs ITO, Ward 1(4), Jaipur assessee that the appeal may be decided on merit instead of delay in filing the appeal before the ld.Addl. CIT(A), Patna. It is further prayed by the ld. AR before the Bench to remit back the matter to the file of the ld.CIT(A) to settle the issue raised in the grounds of appeal (supra) and condone the delay so made before the ld.Addl. CIT(A),Patna on the negligence of earlier counsel of the assessee for which the assessee had to suffer being it a good case . The Bench noticed that the assessee’s counsel was lethargic in not filing the appeal before the ld. Addl. CIT(A) for which the assessee had to suffer. However, the Bench is 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. Thus the delay so made before the ld. Addl. CIT(A), Patna is condoned and the the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity 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.
M/s. Star Developers vs ITO, Ward 1(4), Jaipur 4.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 09 /12/2024.