M/S ESBEE EXIM PVT LTD,KOLKATA vs. I.T.O WD - 5(3),KOLKATA, KOLKATA

In this appeal, the assessee has raised the following grounds of appeal:- 1. a) FOR that on the facts and in the circumstances of the case the Ld. CIT(A) erred in dismissing the appeal by not condoning the delay in filing the appeal. There was sufficient cause for not presenting the appeal within the limitation period. b) FOR that while himself holding that the appellant was entitled to the relief claimed on merits, the Ld C.I.T(A) was not justified in dismissing the appeal by refusing to condone the delay merely on the ground that there was undue delay in filing the appeal. M/s. Esbee Exim Pvt.Ltd 1

The only issue in this appeal to be decided is as to whether the CIT-A justified in not condoning the delay in filing the appeal in the facts and circumstances of the case.

The brief facts of the case are that the assessee is a company and dealing in trading. The Assessee filed its return of income for the assessment year under consideration declaring a total income at Rs.19,440/- on 27-03-2008. Under scrutiny, statutory notices were issued. In response, the Ld. AR of the assessee appeared and furnished the requisite details and supporting documents. Basing on which, the AO issued notices u/s. 133(6) of the Act and examined the replies received from the respective parties. During such proceedings, the AO made disallowances u/s. 14A and 40(a)(ia) of the Act and determined the total income of assessee at Rs.21,31,960/- .

Against which the assessee preferred an appeal before the CIT(A) with a delay of 456 days contending that the said delay in filing the appeal was caused due to advise of the Lawyer against the appeal be filed before the due date i.e. on or before 12.12.09. Thereafter, according to Assessee , again the lawyer has advised the assessee to file the appeal with a petition for condonation of delay in view of the order of the Mumbai Benches in the case of Bansal Parivahan (India) Ltd Vs. ITO reported in (2011) 43 SOT 619(2010), the CIT-A considering M/s. Esbee Exim Pvt.Ltd 2 the submissions of assessee dismissed the appeal without condoning the delay, but, however, allowed the ground of the assessee on merits.

Aggrieved by such order of the CIT-A, now the assessee is in second appeal before us by raising the above mentioned grounds of appeal.

During the course of arguments before us the Ld AR for the assessee submits that the CIT-A dismissed the appeal only on the ground of delay in filing the same. Further submits the CIT-A decided the appeal in favour of assessee on the issue of disallowances made by the AO. He further submits that the impugned appeal is arising out of disallowances made U/Sec 40(a)(ia) of the Act and for non filing of TDS Certificates. The Ld AR urged that the matter may be remanded to the file of the CIT-A for fresh adjudication. On the contrary, the Ld. DR has relied on the orders of the lower authorities.

Heard the rival submissions and perused the material available on record. It is noticed that the grounds of appeal raised before the CIT-A regarding the disallowances made u/s. 40(a)(ia) of the Act. The assessee filed the appeal against the assessment order dated 29-10-09 for making such disallowances made u/s. 40(a)(ia) of the Act with the delay of 456 days and the reason mentioned therein was that due to advice of the lawyer it could not file appeal in time. Thereafter, lawyer advised the assessee to file the appeal with the delay condonation petition in view of decision rendered by the ITAT Mumbai Bench in the case of supra, wherein it held that the amendment made to the provisions of section 40(a)(ia) of the Act by the Finance Act, 2010 are remedial and curative in nature by relying on the decision of the Hon’ble Supreme Court in the case M/s. Esbee Exim Pvt.Ltd 3 of Allied Motors (P) Ltd reported in (1997) 224 ITR 677(SC). It is pertinent to note, as rightly pointed by the Ld.AR, the CIT-A found that the amendment and the decision of the Hon’ble High Court of Calcutta in the case of CIT vs Virgin Creations in ITAT No. 302 of 2011, GA 32 dated 23rd November, 2011 delivered interpreting the amendment to the provisions of section 40(a)(ia) of the Act through Finance Act, 2010 that no disallowance is maintainable if the assessee deposits the TDS before the due date of filing of return. The CIT-A having found so in favour of the assessee, dismissed the appeal of assessee only on the ground that the assessee did not explain the delay properly in filing the appeal. In view of our discussion above and taking into consideration the submissions of assessee and the decisions as rendered by the Hon’ble Calcutta High Court and the Hon’ble Supreme Court in the cases of supra, in the interest of justice, we deem it fit and proper to remand the matter to the file of the CIT-A to consider the petition for condonation of delay and to condone the same and to pass afresh order in accordance with law on merits. The assessee shall be at liberty to file requisite evidences, if any, to substantiate its claim before him and the assessee shall not seek any adjournments and shall cooperate with the proceedings.

In the result, the appeal of assessee is allowed for statistical purpose.