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Facts
The assessee filed an appeal against the order of CIT(A) which dismissed the appeal in limine due to a delay of 542 days. The assessee claimed the delay was only 64 days after excluding the COVID period and cited Supreme Court judgments. The issue on merits pertained to Foreign Tax Credit (FTC), which is stated to be covered in favor of the assessee by Tribunal orders.
Held
The Tribunal found that the filing of Form 67 is a procedural aspect and not mandatory. Given that the delay might be only 64 days after excluding the COVID period and in the interest of justice, the matter was restored to the CIT(A).
Key Issues
Whether the appeal should be restored to CIT(A) for fresh consideration of the delay condonation application, considering the merits of the Foreign Tax Credit (FTC) issue.
Sections Cited
Section 250 of the Income Tax Act, 1961, Form 67
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Income Tax Appellate Tribunal, “SMC-A” BENCH : BANGALORE
Before: SHRI GEORGE GEORGE K
Per George George K, Vice President:
This appeal at the instance of the assessee is directed against the order of CIT(A) dated 12.02.2024, passed under section 250 of the Income Tax Act, 1961 (hereinafter called ‘the Act’). The relevant Assessment Year is 2020-21.
At the very outset, we notice that CIT(A) has dismissed the appeal of the assessee in limine without condoning the delay of 542 days in filing the appeal before him. The learned AR submitted that assessee had given only an explanation for the delay in filing the appeal before CIT(A) in column 15 to Form 35 which has been extracted in paragraph 2 of the impugned Order of the CIT(A). It is submitted that after excluding the covid period from calculation of limitation as
per the Hon’ble Apex Court judgment in MA No.21 of 2022 in suo moto W. P (C) No.3 of 2020 (Order dated 10.01.2022), the delay is only 64 days and not 542 days. It is submitted that in the interest of justice and equity, the matter may be restored to the CIT(A) for proper submission of the condonation application and an affidavit of the assessee.
The learned Standing Counsel was duly heard.
I have heard the rival submissions and perused the material on record. On merits, the issue in question is with regard to Foreign Tax Credit (FTC). Prima facie the issue is covered in favour of the assessee by various orders of the Tribunal wherein it has been held that filing of Form 67 is only a procedural aspect and the same is not mandatory but directory. It is the claim of the assessee that there is only 64 days delay in filing the appeal before the CIT(A), after excluding the covid period. In the interest of justice and equity, since there is no proper delay condonation application filed before the CIT(A), I deem it appropriate to restore the matter to CIT(A) [assessee has given merely an explanation for delay in column 15 to Form 35 filed before the CIT(A)]. Accordingly, the appeal before the Tribunal is restored to the files of the CIT(A). The assessee is directed to file a proper delay condonation application explaining why there is delay in filing appeal before the CIT(A) and a supporting affidavit if so advised. The CIT(A) shall consider fresh delay condonation application and affidavit, if any filed. The CIT(A) shall decide the delay condonation application afresh after affording reasonable opportunity of hearing to the assessee. It is ordered accordingly.
In the result, appeal filed by the assessee is allowed for statistical purposes.