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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]
ORDER / आदेश Per Pradip Kumar Choubey, JM:
Both the appeals are filed by the assessee pursuant to AY 2021-22 and 2022-23 against the order passed by Ld. CIT(A) u/s 250 of the Act dated 01.08.2024 arising out of intimation u/s 143(1) of the Act dated 2.06.2022 and 22.12.2022. Since the issues are common in both the appeals, hence are taken up together for disposal.
& 2012/Kol/2024 Assessment Year: 2021-22 & 2022-23 Datanet Ecommerce Service Pvt. Ltd.
Brief facts of the case of the assessee are that the assessee company had been allotted two PANs since AY 2002-03 and the assessee filed income tax return under PAN No. AABCD 6820 D and Second PAN i.e. AABCD 4524 E was in fact inactive. As per the assessee inadvertently while applying for GST no. the second PAN no. was mentioned. GST No. was allotted with such PAN and GST return with April, 2022 under such PAN. However, the case of the assessee is that the advance tax for the AY 2021-22 amounting to Rs. 10,00,000/- and for AY 2022-23 amounting to Rs. 35,00,000/- were paid under first PAN. It is further stated that the assessee company applied for challan correction with the jurisdiction of AO, however, the same is still pending to be disposed off. The assessee on the advice of the tax consultants filed an appeal u/s 250 of the Act before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed on account of delay in filing of appeal and also non prosecution.
Being aggrieved and dissatisfied the assessee has preferred the present appeal.
The Ld. Counsel in course of argument submitted that there was a delay of 404 days for AY 2021-22 and delay of 201 days for the AY 2022-23 in filing appeal, but the delay was not intentional rather it was bonafide and reason has been explained. According the assessee that company had been allotted two PANs, and assessee were filing income tax return under the PAN AABCD 6820D, since AY 2002-03 but inadvertently while applying for GST no. the second PAN was mentioned hence GST No. was allotted with such PAN. The Ld. Counsel submits that the Ld. CIT(A) failed to appreciate that such delay of 404 days for filing the appeal before the Ld. CIT(A) was only due to difficulty faced by the company since for AY 2021-22 and 2022-23. The return of income was filed by the assessee under second PAN, company had applied for challan correction with the jurisdiction AO but the same was still pending. The Ld. Counsel filed an Affidavit in support of his contention in both the appeals. The submission of the ld. Counsel for the assessee that the assessee had been given an opportunity to place his case before the AO to verify the same.
Contrary to that the Ld. D.R supports the impugned order.
& 2012/Kol/2024 Assessment Year: 2021-22 & 2022-23 Datanet Ecommerce Service Pvt. Ltd. 5. We have perused the order of Ld. CIT(A) and find that in both the appeals, the Ld. CIT(A) has dismissed the appeal of the assessee on the ground of delay as well as non-appearance of the assessee. We have gone through the Affidavit filed by the assessee which are as follows:
We have also gone through several decisions of the Hon'ble Apex Court and find that in Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]:
& 2012/Kol/2024 Assessment Year: 2021-22 & 2022-23 Datanet Ecommerce Service Pvt. Ltd. "... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."
6.1. In N. Balakrishnan v. M. Krishnamurthy [1998 (7) SCC 123], this Court held:
"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 untrammeled by the conclusion of the lower court.
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
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. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
& 2012/Kol/2024 Assessment Year: 2021-22 & 2022-23 Datanet Ecommerce Service Pvt. Ltd. Going over the facts of the case as well as decision of the Apex Court we are inclined to give an opportunity to the assessee to place his case before the AO. Accordingly, the case of assessee are restored to the file of AO. The AO is directed to pass an order afresh after hearing the assessee. In the result, both the appeals of the assessee are allowed for statistical purposes. Order is pronounced in the open court on 31st December, 2024