SRI. HABEEB SHAIK ,BANGALORE vs. INCOME TAX OFFICER, WARD-2(2)(5), BANGALORE
Facts
The assessee filed appeals against orders of the First Appellate Authority (FAA) that dismissed their appeals due to a delay of 450 days in filing. The assessee claimed the delay was due to their Chartered Accountant's staff negligence and insufficient information regarding the assessment order disposal. The FAA did not condone this significant delay.
Held
The Tribunal noted the conflicting reasons for the delay and the difference between the submissions made before the CIT(A) and the affidavit. Considering the grounds raised by the assessee and the Supreme Court's guidelines on condoning delays, the Tribunal decided to remit the issue for examination of the affidavit and to decide on merits, rather than on technical grounds of delay.
Key Issues
Whether the delay in filing the appeal before the First Appellate Authority (FAA) should be condoned, and if so, whether the appeal should be decided on merits.
Sections Cited
143(3), 270A, 143(3A), 143(3B)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, BANGALORE BENCHES “A”, BANGALORE
Before: Shri George George K, Vice- & Shri Laxmi Prasad Sahu
Per Laxmi Prasad Sahu, AM :
These two appeals filed by the assessee against separate orders passed by the First Appellate Authority (FAA) vide order dated 24.11.2023 [ITBA/NFAC/S/250/2023-24/ 1058224554(1)] & [ITBA/NFAC/S/250/2023-24/1058223337 (1)], respectively, for dismissing the appeal filed by the assesee against the order passed by the Assessing Officer (AO) u/s.143(3) of the Income-tax Act, 1961 (“the Act” hereinafter) and order passed u/s.270 of the Act, for the sole reason that the FAA did not condone the delay of 450 days for filing the appeal. In this regard, the learned AR submitted that the Tax Practitioner Sri.T.V.S.Bhat, M/s.T.V.S. Bhat & Co., who is a Chartered Accountant was representing before the Assessing Officer, NFAC and before the CIT(A), but he did not file appeal
2 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik. against the assessment order passed by the A.O./NFAC u/s.143(3) as well as u/s.270A of the Act. In this regard, the learned AR of the assessee has filed written submissions and affidavit from Sri.T.V.S.Bhat and the assessee, which are as under:-
3 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
4 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
5 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
6 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
7 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
The learned AR of the assessee further submitted that the assessee had sufficient cause for preventing to file appeal within the due date and there is no mistake on the part of the assessee. Therefore, the appeal of the assessee should have been admitted by the CIT(A).
8 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
On the other hand, the learned Departmental Representative relied on the order of the first appellate authority and submitted that the CIT(A) has rightly dismissed the appeal of the assessee because there was no reasonable cause explained before the CIT(A). The submission made by the assessee before the CIT(A), reads as follows:-
“Unfortunately due to the restrictions of Covid pandemic, we were unable to contact our professional consultant and prepare the documents for appeal. Hence, filing of appeal was delayed.”
The learned DR further submitted that there is some difference in the reasons stated before the CIT(A) and the affidavit filed. Therefore, this requires examination. The learned DR further submitted that as regards the denial of condonation of delay, the CIT(A) has noted in para 6.10 is his order, which reads as follows:- “6.10 In order words, where there is sufficient cause shown and the application for condonation of delay has been moved bonafide, the court would normally condone the delay but where the delay has not been explained at all and, in fact, there is unexplained and inordinate delay coupled with negligence or sheer carelessness, the discretion of the court in such cases would normally tilt against the applicant. The reasons cited by appellant do not qualify as reasonable cause. The delay of 450 days for fi8ling appeal is beyond condonation. The reasons cited by appellant do not qualify as reasonable cause as held by courts.”
Considering the rival submissions, we noted that the assessee filed return of income declaring income of Rs.15,08,160 and the case was selected for scrutiny. During the course of assessment proceedings, the assessee filed only
9 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik. balance sheet , profit and loss account and bank statement, but did not comply with other documents as required by the A.O. and the A.O. obtained information from the Commercial Tax Department, Bangalore and accordingly he concluded that the purchase made from M/s.Bharat Enterprises and M/s.Indian Steels, amounting to Rs.34,45,650 is bogus purchase and assessed the income at Rs.49,53,810, and completed the assessment u/s. 143(3) r.w.s. 143(3A) and 143(3B) of the Act dated 26th March, 2021. The A.O. also initiated penalty proceedings u/s.270A of the Act, on 27.12.2021. Against both the orders, the appeal was instituted on 22nd April, 2023 before the FAA with a delay of 450 days. However, as per the judgment of the Hon’ble Apex Court (order dated 10.01.2022) in the Miscellaneous Application No.21 of 2022, the actual delay was 327 days for filing appeal before the FAA. During the course of appellate proceedings, the reasons for delay was stated as noted supra. The assessee has also filed affidavit stating the reasons and copy of affidavit from Chartered Accountant, Sri.T.V.S.Bhat and from the assessee also extracted above. Considering the reasons noted above, we remit this issue for examining the affidavit for condoning the delay and to decide the issue as per law. However, we make it clear that neither we have condone the delay as argued by the assessee before us nor we have decided the issue on merits of the case.
10 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik. 6. In the result, the appeals filed by the assessee are allowed for statistical purposes, in the above terms.
Order pronounced in the open court on this …….. day of March, 2024.
A common order passed by us shall be kept in the respective case files.
Sd/- Sd/- (George George K) (Laxmi Prasad Sahu) VICE-PRESIDENT ACCOUNTANT MEMBER
Bangalore; Dated : 19th March, 2024. Devadas G*
Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A), Bengaluru. 4. The Pr.CIT, Bengaluru. 5. The DR, ITAT, Bengaluru. 6. Guard File.
Asst.Registrar/ITAT, Bangalore
11 ITA Nos.148 & 149/Bang/2024 Sri.Habeeb Shaik.
Initial Date 1. Draft dictated on 12.03.2024 Sr.PS 2. Draft placed before author 13.03.2024 Sr.PS 3. Draft proposed & placed before JM/AM the second member 4. Draft discussed/approved by JM/AM Second Member. 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading the order on website 8. If not uploaded, furnish the reason 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the AR 10. Date on which file goes to the Head Clerk. 11. Date of dispatch of Order. 12. Draft dictation sheets are Sr.PS attached
