NANDAN SEN,KOLKATA vs. D.C.I.T., CIRCLE - 2(1), IT, KOLKATA

Brief facts of the case are that the appellant was a non- resident individual and during the financial years 2012-13 and 2013-14, he was employed with M/s. Simplex Infrastructures LLC, Sultanate of Oman. For the purpose of his employment, the assessee had to stay out of India for more than 180 days leading to which the assessee for the purpose of income tax is treated as non-resident taxpayer. The assessee during the impugned assessment year has voluntarily disclosed total income of Rs.9,25,220/- (for A.Y. 2013-14) and Rs.12,56,532/- (for A.Y. 2014-15) arising out of salary that has occurred from his employment staying out of India for more than the stipulated days in a Company named “M/s. Simplex Infrastructures LLC, which was registered outside India.

Subsequently the assessee came to know that his returns of income have been processed considering the assessee to be a resident under section 143(1) of the Act. The return has been wrongly processed as the income from salary received outside India from a foreign source was erroneously filled in the salary page of the income tax return, which is actually meant for salary taxable in India, which was not so in the assessee’s case. Documents supporting his stay out of India for more than 180 days are being enclosed by the assessee and prayed that the Bonafide wrong mistake of the assessee be taken into consideration and the 2

Aggrieved by the action of the ld. Assessing Officer, the assessee preferred appeals before the ld. CIT(Appeals) and filed his written submission.

The assessee filed these appeals belatedly for a period of six years seven months and eight days for assessment year 2013-14 and seven years eight months and twenty-five days for assessment year 2014-15. The assessee also filed a petition for condonation of delay. After considering the written submission of the assessee, the ld. CIT(Appeals) dismissed the condonation petition filed by the assessee saying that –“after 2019, his period of stay in India was about four & half years. It cannot be construed that this was not sufficient for filing appeal before the appropriate authority. Further, the COVID pandemic cannot be taken as an excuse in this case since the COVID-19 outbreak in India took place mainly from the middle of March, 2020”. He was of the opinion that there was no semblance of seriousness from the appellant’s part, which was expected from a law-abiding person. In view of such 3

On being aggrieved by the orders of ld. CIT(Appeals), the assessee preferred appeals before the Tribunal and raised the following grounds in both the appeals:- Grounds of appeal before the Hon’ble ITAT (1) That the intimation and demand order of the CPC, Bangalore is erroneous on facts and bad in law. On the facts and circumstances of the case, he ought to have accepted the salary income as income earned by non- resident not accruing or arising or received in India or not deemed to have accrued, arisen or received in India. (2) The appellant apparently made a Bonafide error while filing the return and he should not be punished for a procedural error.

After considering the grounds of appeals filed by the assessee, we find that the assessee has not challenged the orders passed by the ld. CIT(Appeals) with respect of the condonation of delay. Therefore, it remained unchallenged. However, in view of the interest of justice, we have considered the reasons mentioned in the condonation petitions, which were filed before the ld. CIT(Appeals) to condone the delay of six years seven months and eight days for assessment year 2013-14 and seven years eight months and twenty-five days for assessment year 2014-15.

We have heard both the sides and perused the relevant material available on record. It was the submission of the assessee that the ld. Assessing Officer ought to have accepted the salary income of the assessee in the capacity of non-resident. He further submitted that the assessee made a Bonafide error while filing the returns of income, therefore, he should not be punished for a procedural error.

On the other hand, ld. Departmental Representative submitted that it is not a mere procedural irregularity but the assessee himself claimed as if he earned salary in India. Therefore, the revenue authorities have not considered the plea of the assessee. Apart from this, the appeals were belatedly filed before the ld. CIT(Appeals). The ld. CIT(Appeals) has not considered the delay condonation petitions filed by the assessee and dismissed the condonation petitions since the assessee failed to explain sufficient cause for huge delay in filing the appeals.

The main contention of the assessee is that due to unavailability of the appellant in India from the year 2015 to 2019 and thereafter COVID pandemic, because of these reasons, the appellant could not file the appeal in time. Moreover, the appellant also filed the details of his stay in India from July 2015 to the end 5

According to section 9 of the Limitation Act, “where once time begins to run, no subsequent disability or inability to institute the suit or make an application stops it”. Therefore, considering the facts and circumstances of the case, Ld. CIT(Appeals) observed that the assessee had been stayed sufficient period in India to file an appeal, even the assessee can file the appeal online or offline, but actually there is no satisfactory evidence to show that the assessee was prevented to file appeals with sufficient cause. Therefore, after considering the facts and circumstances of the case, the ld. CIT(Appeals) dismissed the appeals. Thus, we do not find any infirmity in the orders of ld. CIT(Appeals). Therefore, we dismiss the appeals filed by the assessee.