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आयकर अपील"य अ"धकरण,च"डीगढ़ "यायपीठ, च"डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH, ‘SMC’, CHANDIGARH BEFORE SHRI A.D. JAIN, VICE PRESIDENT & SHRI KRINWANT SAHAY, ACCOUNTANT MEMBER आयकर अपील सं./ "नधा"रण वष" / Assessment Year : 2018-19 The Dol Cooperative Vs. The ITO, बनाम Dharamshala Agricultural Service Society Limited, VPO Aghwani, Tehsil Jawalamukhi, Kangra HP "थायी लेखा सं./PAN No: AADAT6246M अपीलाथ"/ APPELLANT ""यथ"/ REPSONDENT ( PHYSICAL HEARING ) "नधा"रती क" ओर से/Assessee by : Shri Sudhir Sehgal, Advocate राज"व क" ओर से/ Revenue by : Shri Vivek Vardhan, JCIT, Sr. DR सुनवाई क" तार"ख/Date of Hearing : 13.08.2024 उदघोषणा क" तार"ख/Date of Pronouncement : 16.10.2024 आदेश/Order Per Krinwant Sahay, A.M.:
The appeal in this case has been filed by the Assessee against the order dated 09.11.2023 of the ld. Addl./JCIT Commissioner of Income Tax (Appeals)-5, Mumbai [herein referred to as Addl./JCIT (A)’.
There is a delay of 41 days in filing of the appeal before the ITAT. The Assessee has filed an Affidavit on this delay which is reproduced as under:-
163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 2 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 3 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 4
We have considered the facts and issues mentioned in the aforesaid affidavit and we have condoned the delay. The ld. DR had no objection on this issue.
4. The appeal in this case has been filed on the following grounds : 1) That the order of the learned assessing authority is against the law and facts and deserved to be quashed.
2) That the learned assessing authority was not justified in imposed tax and interest amounting Rs 344930 by disallowing deduction under chapter VI -A in respect of section 80P of the Income Tax Act 1961, as assessee is providing banking/credit facilities to its members and covered u/s sec 80P(2)(a)(I) without considering the facts of the case which is highly arbitrary, illegal, unwarranted & uncalled for.
3) That the assessee has filed rectification but same are rejected, copy of rectification made are enclosed.
4) That the learned assessing authority errored in not placing and reliance on the material placed during the proceedings.
5) That it is prayed that the order of the learned assessing authority be quashed and income tax of Rs 344930/- wrongly & illegally levied be remitted to the appellant.
163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 5 6) That the appellant craves leave to amend or vary the grounds of appeal at the time of hearing or with the appeal is disposed off.
The ld. Counsel of the Assessee has filed written submissions during the proceedings before us. Brief facts of the case as per the submissions filed by the Counsel of the Assessee are as under: -
This is a case of a Cooperative agricultural society, which is engaged in providing banking/credit facilities to its members and is located in remote village of Himachal Pradesh. The said Cooperative society had been filing the return of Income Tax year after year after, claiming deduction u/s 80P(2)(a)(i) of the Income Tax Act, 1961 and the said deduction was being allowed in the earlier years. The return for the year under consideration was filed by the counsel of the assessee, since the members of the society are illiterate and while filing the return of income, the counsel of the assessee wrongly claimed the deduction u/s 80P(c)(ii) of the Income Tax Act, 1961, instead of u/s 80P(2)(a)(i) of the Income Tax Act, 1961 and the CPC in an intimation order u/s 143(1) disallowed the deduction as claimed.
2. The assessee filed an appeal before the CIT(A) and the said appeal was late before the CIT(A) and as per the order of the CIT(A), the intimation u/s 143(1) was 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 6 served upon the assessee on 25.05.2019 and the appeal was filed on 21.11.2020 and thus, it was late by 545 days. Before the CIT(A), the reasons for delay in filing of appeal were stated by the assessee as reproduced at page no. 2 of the order of the CIT(A) and it was stated that the delay was on account of COVID Pandemic and, also that, the intimation order u/s 143(1) was given to the dealing assistant for further appropriate action, but that dealing assistant, wrongly placed the same in the file and, as such, there was delay in filing the appeal before the before the CIT(A).
3. The CIT(A) in his wisdom has not condoned the delay in filing the appeal before him and the appeal being late and also according to the CIT(A), there was no sufficient cause for delay in filing of appeal and, hence, dismissed the appeal of the assessee on the issue of delay in filing of appeal.
The assessee had filed an appeal before Hon'ble ITAT raising following grounds of appeal: 1) That the order of the learned assessing authority is against the law and facts and deserved to be quashed.
2) That the learned assessing authority was not justified in imposing tax and interest amounting Rs 3,44,930/- by disallowing deduction under chapter Vl-A in respect of section 80P of the Income Tax Act 1961, as assessee is providing banking/credit 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 7 facilities to its members and covered u/s sec 80P(2)(a)(l) without considering the facts of the case which is highly arbitrary, illegal, unwarranted & uncalled for.
3) That the assessee has filed rectification but same are rejected, copies of rectification made are enclosed.
4) That the assessing authority errored in not placing reliance on the material placed during the proceedings.
5) That it is prayed that the order of the learned assessing authority be quashed and income tax of Rs 3,44,930/- wrongly & illegally levied be remitted to the appellant.
6) That the appellant craves leave to amend or vary the grounds of appeal at the time of hearing or with the appeal is disposed-off.
5. During the course of hearing, the ld. Counsel of the assessee raised an additional ground of appeal vide letter dated 13.08.2024 which reads as under: 1) That the ld. CIT (Appeals), has erred in not condoning the delay as per the reasons submitted by the assessee before the d. CIT (Appeals).
It was argued before us that no new facts are liable to be looked into and, as such, the assessee prayed for admission for additional 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 8 ground of appeal, and after the hearing of ld. DR, the additional ground was admitted, since all the facts are borne out from the records of the Assessing Officer and CIT(A).
7. In fact, the Addl. CIT(A) in his appeal order has given the findings on this issue as under: - “In the present case, the appellant has not adduced any reasonable cause which prevented it from filing the appeal for 545 days. Unless and until it demonstrated that there was sufficient cause that prevented the appellant from exercising its legal remedy of filing appeal within that prescribed period of 30 days, delay thereafter cannot be condoned. From the facts of the case, it is clear that the statutory right to appeal which was vested with the appellant was not exercised within the stipulated time u/s 249(3). Thus, this clearly is a case of laches and is directly the result of deliberate inaction on part of the appellant.
In view of above, the delay of 545 days in filing of appeal in this case is not condoned as no "sufficient cause" has been shown under section 249(3) of the Income Tax Act for the appellants failure to file the appeal within prescribed period of limitation u/s 249(2) of the Income Tax Act r.w.s 5 of the Limitation Act. Since, the delay in filing of appeal has not been condoned, consequently the appeal of the appellant becomes not-est and therefore, the same is not admitted.
163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 9
The ld. DR, on the issue of delay in filing of the appeal, has relied upon the findings given by the ld. Addl. CIT(A) and he also argued that the rejection of condonation of delay by the Addl. CIT(A) was as per the law.
We have considered the findings of the Addl. CIT(A) on the issue of delay in filing of the appeal as well as his findings on the condonation of delay application filed by the Assessee before him. We have also considered the arguments made by the ld. DR in the proceedings before us. We have gone through the written submissions filed by the Counsel of the Assessee before us and we have also heard the arguments of the Counsel of the Assessee on this issue. We find that it is very clear from the Affidavit filed before the ld. Addl. Commissioner of Income Tax (Appeals) that the effective delay in filing of the appeal was only 294 days because the period from 15.3.2020 to 20.11.2020 was not be considered for condonation of delay on account of Covid-19 Pandemic, as per the order of the Hon'ble Supreme Court on this issue. We find that the ld. Addl. CIT(A) has dismissed the appeal because on the legal issue of late filing, without giving any findings on the basis of material available on record and on the merits of the case. We are also of the considered view that in order to meet 163-Chd-2024 – The Dol Cooperative Agricultural Service Society Pvt. Ltd, Distt.Kangra 10 the ends of natural justice, it is important to give findings on merits which has not been done in this case by the ld. Addl. CIT(A). We think that the issue and facts brought on record by the Assessee before the Addl. CIT(A) for delay in filing of the appeal should have been positively considered by the ld. CIT(A) and, therefore, we condone the delay in filing of the appeal and remand this case back to the file of the CIT(A) for deciding the issues raised by the Assessee in the grounds of appeal
on merit, in accordance with law, on affording due and adequate opportunity of hearing to the Assessee. The Assessee, no doubt, shall cooperate in the fresh proceedings before the CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered accordingly.
10. In the result, the appeal of the Assessee stands allowed for statistical purposes.
Order pronounced on 16.10.2024. ( A. D. JAIN ) Accountant Member “आर.के.”