SHRADDHA SAKH SAHKARI SANSTHA,BARWANI vs. THE ITO, SENDHWA, SENDHWA

Per Vijay Pal Rao, JM:

This appeal by the assesse is directed against the order dated 27.12.2022 of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centers,(NFAC) Delhi for the Assessment Year 2019-2020.

ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha

assessee has filed an application for condonation of delay which is

supported by the affidavit of President of the assessee society. The

Ld. AR of the assessee has submitted that the CIT(A) has issued

only one notice of hearing before passing the impugned ex-parte

order. The impugned order was sent by the CIT(A) to the official e-

mail ID of the assessee society however, due to oversight of the

concerned staff the impugned order did not came to the knowledge

of the management of the assessee society and therefore, there was

a delay in filing the present appeal. Thus, Ld. AR has submitted

that only when the counsel of the assessee going through the e-

proceedings tab on the e-filing portal of the department came

across the fact that CIT(A) has already passed the impugned order

on 27.12.2022 against which the appeal was yet to the filed. The

Ld. AR has pointed out that after the impugned order came to the

knowledge of the management of the assessee it has taken steps to

file the present appeal without any further delay however, in the

meantime there was already a delay of 349 days in filing the

present appeal. The Ld. AR has pleaded that the delay in filing the

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ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha appeal is unintentional but due to bonafide mistake and oversight

of the concerned staff in noticing the impugned order sent to the e-

mail. In support of this contention he has relied upon following

decisions:

(i) Vijay VishanMeghani vs. DCIT (Bombay High Court) (2017)

398 ITR 250.

(ii) Improvement Trust vs. Ujagar Singh (Supreme Court) Civil

Appeal Nos. 2395 of 2008 dated 26.06.2010.

(iii) Hon’ble Supreme Court of India in Collector Land

Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors as reported

in (1987) 62 CTR (SC) 23: (1987) 13 AIR 306(SC).

vehemently objected to the condonation of the delay and submitted

that this is a case of negligence on the part of the assessee which

cannot be accepted as a reasonable cause for delay of 349 days in

filing the present appeal.

the relevant materials on record. The assessee in the affidavit of its

President has narrated the reasons as under: Page 3 of 9

ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha

“1. I am the President of the society, M/s Shraddha Sakh Sahkari Sanstha. The income-tax return of the said society for the Assessment Year 2019-20 was filed on 13-10-2020 wherein total income was declared at Rs. NIL after claiming deduction of Rs. 15,51,612/- under section 80P of the Income-Tax Act, 1961 ('the Act'). 2. The return of Income was processed under section 143(1) of the Act wherein deduction of Rs. 15,51,612/- claimed under section 8OP of the Act was disallowed since return of Income was not filed within the due date prescribed under section 139(1) of the Act. Against this order, the society filed an appeal before the Ld. CIT(A) challenging the disallowance of deduction claimed under section 80P of the Act am the Ld. CIT(A), NFAC, Delhi vide order dated 27-12-2022 passed under section 25 of the Act dismissed the appeal filed by the society. 3. The said order passed by the Ld. CIT(A), NFAC, Delhi was served on the registered E-Mall of the society which was Inadvertently overlooked by the concerned personnel of the society as a result of which we were unaware of the fact that CIT(A) order had been passed on 27-12-2022. It was just recently that our present counsel on going through the E-Proceedings tab on the E-Filing Portal of the Income-Tax Department came across the fact that CIT(A) Order had been passed under section 250 of the Act on 27-12- 2022 against which appeal remained to be filed before the Hon'ble ITAT, Indore Bench. However, as soon as this fact came across our counsel, he advised us to immediately file an appeal before the Hon'ble Bench challenging the order passed by the Ld. CIT(A), NFAC, Delhi.

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ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha Act, we paid the challan for appeal fees immediately and accordingly, the present appeal is boing filed without any further delay. 5. Hence, in the interest of substantial justice, Hon'ble Bench is hereby requested to condone the delay in filing of the present appeal and admit the appeal as legal and valid.” 5. Thus, it is stated that the impugned order was sent by CIT(A)

on the registered e-mail ID of the society which was inadvertently

over looked by the concerned personnel of the society and therefore,

the management of the society were not aware of the impugned

order of CIT(A) till it was brought to the notice by the counsel of the

assessee. Thus, the assessee has pleaded that it is only due to

inadvertence and bonafide mistake on the part of the concerned

staff of the society for overlooking the e-mail sent by CIT(A) the

assessee could not file the appeal within limitation. The assessee in

the application for condonation of delay as well as in the affidavit

has honestly and fairly explained the inadvertence and bonafide

mistake on the part of the concerned staff and therefore, we find

that there is nothing on record to suggest that by filing the appeal

belatedly there was any malafide intention on the part of the

assessee to take undue advantage in underhand way. Accordingly,

in the facts and circumstances of the case and in view of the

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ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha various judgments relied by the Ld. AR of the assessee we condone

the delay of 349 days in filing the present appeal subject to the cost

of Rs.2,500/- to be paid to Prime Minister National Relief Fund.

The assessee shall produce the receipt of deposit of the cost with

the registry.

wherein the assessee has raised following grounds of appeal:

“1. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deciding the appeal ex-parte without giving proper opportunity of being heard to the appellant. 2. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. CPC, Bengaluru in disallowing the deduction of Rs. 15,51,612/- claimed under section 80P of the Act in the intimation order passed under section 143(1) of the Act even when such adjustment was outside the purview of intimation order. 3. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the action of the Ld. CPC, Bengaluru in disallowing the deduction of Rs. 15,51,612/- claimed under section 80P of the Act simply for the reason that return of income was not filed within the due date prescribed under section 139(1) of the Act more so when return of income was duly filed under section 139 of the Act and deduction was also allowable on merits. 4. The appellant reserves the right to add, alter and modify the grounds of appeal as taken by it”.

return of income u/s 143(1) has denied the deduction u/s 80P of

the Act on the ground of delay in filing the return of income. He

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ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha has contended that at the relevant point of time the CPC was not

having the jurisdiction u/s 143(1) of the Act to make such an

adjustment on account of deduction u/s 80P of the I.T. Act. He has

pointed out that the relevant amendment to the provisions has

been brought vide Finance Act 2021 w.e.f. 01.04.2021 whereas the

CPC has denied the claim of deduction u/s 80P vide intimation

dated 24.2.2021. He has further submitted that this issue is

covered by the decision of this Tribunal dated 31.07.2023 in case of

Gajra Gears Kamgar Sahakari Sanstha Maryadit v/s DCIT, CPC,

Bangalore (supra) in ITA No. 347/Ind/2022.

upon the orders of the authorities below.

material on record. The claim of deduction u/s 80P was denied by

CPC while processing the return of income u/s 143(1) of the Act

vide order dated 24.02.2021 therefore, the impugned order u/s

143(1) was passed by CPC prior to the amendment vide Finance Act

2021 w.e.f. 01.04.2021. This Tribunal in case of Gajra Gears

Kamgar Sahakari Sanstha Maryadit v/s DCIT, CPC, Bangalore

(supra) has considered the identical issue in para 5 to 7 as under: Page 7 of 9

ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha “5. Ld. AR straightaway carried us to the provision of section 143(1) and demonstrated that the power to disallow deduction for belated filing of return after due date u/s 139(1) is prescribed in section 143(1)(a)(v). Then, he submitted that at the relevant time, the provision of said section 143(1)(a)(v) prescribed thus: “(v) disallowance of deduction claimed under sections 10AA, 80-IA, 80- IAB, 80-IB, 80-IC, 80-ID or section 80-IE, if the return is furnished beyond the due date specified under sub-section (1) of section 139;” This section was subsequently amended through Finance Act, 2021, w.e.f. 01.04.2021 to read as under: “(v) disallowance of deduction claimed under section 10AA or under any of the provisions of Chapter VI-A under the heading "C.—Deductions in respect of certain incomes", if the return is furnished beyond the due date specified under sub-section (1) of section 139;” 6. Ld. AR submitted that prior to amendment, specific deductions, namely the deductions u/s 10AA, 80-IA, 80-IAB, 80-IB, 80-IC, 80-ID and 80-IE could only be disallowed if the return was not filed in time. But there was no provision to disallow deduction u/s 80P. It is after amendment from 01.04.2021 that the language was widened to confer power to disallow any deduction falling under heading “C-Deductions in respect of certain incomes” of Chapter VI-A. Thus, the disallowance of deduction u/s 80P was brought in the scope of section 143(1) through amendment from 01.04.2021. Ld. AR also filed a copy of the “Memorandum explaining the provisions in The Finance Bill, 2021” wherein it is clearly mentioned that the amendment shall apply from 01.04.2021. Ld. AR submitted in the present case, the AO has disallowed deduction in the intimation passed on 31.05.2019 for AY 2018-19 at the time when there was no authority to disallow deduction u/s 80P for the reason of non-filing of return in time. Ld. AR also relied upon the decision of ITAT, Rajkot Bench in ITA No. 269/RJT/2022 Aliudepur Seva Sahakari Mandli Ltd. Vs. The ADIT (CPC), Bengaluru, order dated 24.02.2023, relevant paragraph is extracted below: “6.2 Respectfully following the above Co-ordinate Bench decisions, we have no hesitation in holding that the assessee cannot be denied the deduction u/s 80P of the Act on the ground that the assessee did not file the return of income within the due date prescribed u/s 139(1) of the Act under proceedings made u/s 143(1) of the Act for the Assessment year 2019-20.” 7. With these submissions, Ld. AR argued that the disallowance made by Ld. AO in present case is beyond authority and the same deserves to be deleted. Ld. DR could not controvert the submissions of Ld. AR.”

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ITANo.109/Ind/2024 Shraddha Sakh Sahakari Sanstha

earlier decision of this Tribunal and consequently the disallowance

made by the CPC while processing the return of income u/s 143(1)

of the Act in respect of deduction u/s 80P is not sustainable in law

and same is deleted.

Order pronounced in the open court on 23.09.2024.

Sd/- Sd/-

(B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member

Indore, 23.09.2024 Dev/Sr. PS

Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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