SH. SUNIL BAFNA,2-DHA-5, VIGYAN NAGAR, KOTA vs. CPC, BENGALURU/ ACIT, CIRCLE-1, KOTA, KOTA

ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 21-03-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2018-19 wherein the assessee has raised the following ground of appeal. ‘’The ld. CIT(A) has erred on facts and in law in not deciding the appeal on merit which is a covered issue in favour of the assessee but dismissing the appeal filed by the assessee on technical ground by holding that there is no sufficient cause for

2.2. The Ld. CIT(A) on the basis of report received from AO observed that the date of service of intimation is 20.06.2019 and not 21.01.2020 and thus, there is delay of 324 days in filing the appeal. The assessee accepted this mistake. To cover up the delay in filing the appeal, the assessee has given incorrect facts in Form No.35 in as much as application u/s 154 is dt. 21.01.2019 whereas the intimation is dt. 19.06.2019. The assessee has also not submitted copy of application filed u/s 154. Thus it is a case of misrepresentation of facts. The assessee did not have sufficient 3 ITA146JP/2022 SHRI SUNIL BAFNA VS ACIT, CIRCLE-1, KOTA cause for delay in filing the appeal. Accordingly, the appeal filed by the assessee is dismissed.

2.3 During the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) has erred in dismissing the appeal on technical ground instead of deciding on merit for which the ld. AR of the assessee filed following written submission.

‘’1. It is submitted that as per the report of AO, intimation was sent on e-mail of assessee on 20.06.2019 and SMS was also sent to him on the same date. However, this missed the attention of assessee and it came to his notice only on 21.01.2020 and accordingly in Form No.35 filed on 08.06.2020, the date of service is stated to be 21.01.2020. It may be noted that similar intimation was received for AY 2019-20 on 01.05.2020 against which also appeal was filed before Ld. CIT(A) on 08.06.2020.

2.5 We have heard both the parties and perused the materials available on record. It is noted from the ld. CIT(A)’s order wherein he dismissed the appeal by observing as under:-

‘’7……The appellant has neither exercised due diligenece nor has it been able to establish that all possible efforts were made and the delay was due to reasons beyond its control. It has failed to provide a cogent and satisfactory explanation for the delay in filing the appeal. The appellant also could not bring on record any evidence or reasons to demonstrate that it was prevented by inevitable circumstances or there was a sufficient cause for not filing the appeal in time. In fact, it is a case of misrepresentation of facts wherein the appellant has stated incorrect facts, regarding date of receipt of intimation, in Form No. 35 to cover up the delay in filing appeal. Even the explanation filed for delay subsequent to receipt of intimation in Form 35 has no rationale and basis. Therefore considering the facts and circumstances of the case alongwith judicial pronouncements above, it is held that the appellant did not have ‘’sufficient cause’’ for delay in filing appeal. As stated above, it is a case of misrepresentation of facts. The appeal filed by the appellant is thus held to be invalid and non-maintainable being out of time is dismissed in limine. The appeal is therefore, treated as dismissed.’’ We have taken into consideration the submission of the assessee as well as the order of the ld. CIT(A) and noted that the ld. CIT(A) has dismissed the appeal of the assessee on technical latches instead of merit. To this effect, the Hon’ble Apex 5 ITA146JP/2022 SHRI SUNIL BAFNA VS ACIT, CIRCLE-1, KOTA Court in the case of N Balakrishnan vs. M. Krishnamurthy [1998 (9) TMI 602 - Supreme Court; Other Citation 2008 (228) E.LT. 162 (SC), 1998 AIR 3222, 1998 (1) Suppl SCR 403, 1998 (7) SCC 123, 1998 (6) JT 242, 1998 (5) SCALE 105] has held as under ‘’’’. 9 It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

6 ITA146JP/2022 SHRI SUNIL BAFNA VS ACIT, CIRCLE-1, KOTA 12 A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate…… 13 It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation...........’’ In view of the above facts, circumstances of the case and the decision of Hon’ble Supreme Court (supra), the delay made in the case of the assessee is condoned.

3.1 As regards the issue of late deposit of Employees contribution towards PF/ESI, it is noted from the available records that the Employees Contribution towards PF/ESI has been paid much before the due date of filing of return. The Bench observed that the issue of late deposit of PF/ESI contribution by the assessee but before filing the due date of filing of the return, is covered by the decision of ITAT, Jaipur Bench dated 22-02-2020 in the case of Pratap Technocrats Private Ltd. And another vs ADIT,CPC, Bengaluru (ITA 18/JP/2022, 33/JP/2022, 24,25, & 26/JP/2022 wherein ITAT has held as under:-

‘’20. By considering the totality of the facts and the judicial pronouncements, we are of the view that the amendment brought in the statute i.e. by Finance Act, 2021, the provisions of Section 36(1)(va) r.w.s. 43B of the Act amended by inserting explanation 2 is prospective and not retrospective. Hence, the amended provision of 7 ITA146JP/2022 SHRI SUNIL BAFNA VS ACIT, CIRCLE-1, KOTA Section 43B r.w.s. 36(1)(va) of the Act are not applicable for the assessment year under consideration i.e. 2018-19 but will apply from assessment year 2021-22 and subsequent assessment years. Hence, this issue raised in assessee’s appeal is allowed.’’ Therefore, the we respectfully concur with the findings of the this Bench on the PF/ESI and the order of the ld. CIT(A) is reversed. Thus the appeal of the assessee is allowed.

In the result, the appeal filed by the assessee is allowed. 4.0 Order pronounced in the open court on 22/07/2022 Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Rathod Kamlesh Jayantbhai) (Sandeep Gosain) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 22/07/2022 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Shri Sunil Bafna, 2. izR;FkhZ@ The Respondent- ACIT, Circle- 1, Kota 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 146/JP/2022) vkns'kkuqlkj@ By order,