AYISHA FIRDOSE ,BANGALORE vs. INCOME TAX OFFICER, WARD-5(3)(1), BANGALORE

Brief facts of the case are as follows:

Aggrieved by the intimation issued under section 143(1) of the Act, assessee fled appeal before First Appellate Authority (FAA). There was a delay of 40 days in filing the appeal before the FAA [refer para 3.1 of the impugned order of CIT(A)]. With regard to the delay in filing the appeal before the FAA, assessee had filed application for condonation of delay. The FAA did not condone the delay and held that assessee has not properly explained the delay of 40 days and dismissed the appeal of the assessee in limine.

Aggrieved by the Order of the FAA, assessee has filed the present appeal before the Tribunal. Assessee has filed a Paper Book comprising of 225 pages enclosing therein the submissions made during the appellate proceedings, the application for condonation of delay, etc. The learned AR submitted that assessee has never been subjected to scrutiny assessment and intimation with the demand was issued for the first time during the subject year. It was submitted that assessee was unaware of the intimation being issued under section 143(1) of the Act since assessee was not regularly checking her email. Further, it was submitted that on merits assessee has got a good case since there was an error in tax audit report where there was aggregation of both employer and employees’ contribution. It was submitted that employer contribution to ESI and PF was paid within the due date specified under the Act and no disallowance is called for.

The learned DR supported the Order of the CIT(A).

We have heard the rival submissions and perused the material on record. The CIT(A) at para 3.1 of the impugned had noted that there is a delay of 40 days

Assessee is engaged in the business of staffing/manpower. It is a case of the assessee that assessee was never been subjected to scrutiny assessment and it was the first year in which an intimation and demand has been issued. It is further submitted that assessee is not in the habit of checking regularly her email account and has missed the service of Assessment Order in her email. The learned AR had also submitted that assessee was never served with the physical copy of the Assessment Order. On merits, the assessee submits that there was error in tax audit report wherein the employer/employees’ contribution to the PF/ESI were aggregated thereby resulting in disallowance under section 36(1)(va) of the Act. It was submitted that assessee had paid the employer contribution to PF / ESI within the due dates specified under the Act i.e., before the due date of filing of the return under section 139(1) of the Act. On the facts of the instant case, we notice that delay is not inordinate. The reasons stated for belated filing of appeal before the FAA was that assessee was not computer literate and was not checking her email regularly which had led to not noticing the service of Intimation under section 143(1) of the Act in time. We are of the view that there is reasonable cause in belated filing of the appeal before the CIT(A). Accordingly, we condone the delay of 40 days. In condoning the delay of 40 days, we rely on the judgment of the Hon’ble Apex Court in the case of Collector of Land Acquisition and Others Vs. MST Katiji and Others reported in (1987) 167 ITR 471 wherein the Hon’ble Court had laid down certain basic principles to be kept in mind while considering the delay condonation application, which reads as under:

The Hon’ble Supreme Court in the case of Vedabaiv. Shantaram Baburao Patil [2002] 253 ITR 7981 held as under :

In view of the aforesaid judicial pronouncements, we hold that a liberal view is to be taken on the facts of this case and the delay of 40 days in filing the appeal before the FAA is condoned. Since the delay in filing the appeal before the CIT(A) has been condoned, we restore the matter to the CIT(A) to adjudicate the issues raised on merits. It is ordered accordingly.

In the result, appeal filed by the assessee is allowed for statistical purposes.