M/S BPS INFRASTRUCTURE, BALODA BAZAR,BALODA BAZAR vs. INCOME TAX OFFICER, WARD-1(3), RAIPUR, RAIPUR

Succinctly stated, the assessee firm had e-filed its return of income for A.Y.2019-20 on 30.09.2019, declaring an income of Rs.14,66,150/-. The A.O/CPC, Bengaluru vide intimation issued u/s. 143(1) of the Act, dated 06.03.2020 disallowed the assessee’s claim for deduction of delayed deposit of employees share of contribution towards ESI/PF of Rs.19,84,415/- u/s. 36(1)(va) of the Act and determined its income at Rs.34,50,570/-.

Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without success. Observing, that the disallowance of the assessee’s claim for deduction of delayed deposit of employees share of contribution towards ESI/PF was rightly made by the A.O u/s. 36(1)(va) of the Act, the CIT(Appeals) approved the adjustment made by the DCIT, CPC, Bengaluru u/s. 143(1) of the Act.

The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal.

Shri Ravi Agrawal, Ld. Authorized Representative (for short ‘AR’) for the assessee at the threshold of hearing of the appeal submitted that a delay of 690 days was involved in filing of the present appeal. Elaborating on the reasons leading to the aforesaid delay, it was submitted by the Ld. AR that the same had occasioned for the reason that the accountant of the assessee firm, viz. Shri Amitabh Paul had failed to bring to the notice of the partners of the assessee firm the order of the CIT(Appeals), dated 29.09.2021. The Ld. AR submitted that Shri Bhuvneshwar Prasad Sahu, partner of the assessee firm received the aforesaid order from his accountant only as on 08.10.2023. The Ld. AR submitted that Shri Amitabh Paul, accountant had admitted that though the order of the CIT(Appeals) was received by him way back but it had skipped from his mind to bring the same to the notice of the partners of the assessee firm. Carrying his contention further, the Ld. AR submitted that it was only when Shri Bhuwaneshwar Prasad Sahu (supra) had further brought the aforesaid order of the CIT(Appeals) on 29.09.2021

Backed by the aforesaid facts, the Ld. AR submitted that as the delay in filing of the present appeal was purely on account of bonafide reasons and not for any lackadaisical approach or callous conduct of the assessee firm, therefore, the same, in all fairness be condoned.

Per contra, the Ld. Departmental Representative (for short ‘DR’) had raised objection to the seeking of the condonation of delay in filing of the present appeal by the assessee appellant.

I have heard the ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions.

On a careful perusal of the facts leading to the delay in filing of the present appeal, I am unable to persuade myself to subscribe to the same. I, say so, for the reason that the delay in filing of the present appeal can by no means be held to be justified for the reason that partners of the assessee firm had remained unaware about the order passed by the CIT(Appeals) dated 29.09.2021 which was dropped in the email account of his accountant, viz. Shri Amitabh Paul. As the reason given by the assessee firm regarding the inordinate delay involved in filing of the present appeal does not inspire any confidence, and in fact reveals a lackadaisical conduct of the partners of the assessee firm, therefore, the same cannot be summarily accepted on the very face of it. Considering the callous and lackadaisical conduct of the partners of the assessee firm who ought to have remained vigilant about their income tax matter, I am unable to persuade myself to concur with the claim of the Ld. AR that the delay in filing of the appeal had occasioned for bona fide reasons.

The co-ordinate bench of the Tribunal in the case of M/s. Phoenix Mills Ltd. Vs. Asstt. CIT in ITA No.6240/MUM/2007 for A.Y.1999-2000, dated 23.03.2020, had held that where an application for condonation of delay has been moved bonafide, then, the Court would normally condone the delay, but where the delay has not been explained based on a justifiable reason and in fact there is an unexplained and inordinate delay coupled with negligence or sheer carelessness, then, the discretion of the court in such cases would normally tilt against the applicant. Reverting to the facts of the present case, I have already examined the reasons that had led to the inordinate delay of 690 days, and, as the same cannot be held to have occasioned due to bonafide reasons, therefore, there appears to be no reason to adopt a liberal view and condone the delay therein involved. Also, the fact that the assessee firm was duly assisted by a chartered accountant; therein further fortifies my conviction that the claim of the asssessee that it had remained oblivion of the order of the CIT(Appeals) is further disproved. Also, I may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of an appeal cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act.

I may herein observe that in the case of State of West Bengal Vs. Administrator, Howrah 1972 AIR SC 749, the Hon’ble Apex Court had held that the expression “sufficient cause” should receive a liberal construction so as to

Also, I may herein draw support from a Third Member decision of a co- ordinate Bench of the Tribunal, in the case of Jt. CIT Vs. Tractors and Farm Equipments Ltd. (2007) 104 ITD 149 (Chennai), wherein a fine distinction was drawn between normal delay and inordinate delay. It was held as under: “A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach, but in the latter case no such consideration may arise and such a case deserves a liberal approach.”

Also, as observed by the Hon’ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. AIR (1962) 361 (SC) that seeker of justice must come with clean hands, therefore, now when in the present appeal

Apropos the reliance placed by the Ld. AR on the judgment of the Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. Mst. Katiji and Others (supra), the same being distinguishable on facts as against those involved in the captioned appeal before me, thus, would not assist its case. The Hon'ble Apex Court, stressing upon considering of a "sufficient cause" by the Courts, while deciding as to whether the delay involved in the filing of the appeal merits to be condoned, had observed that the said term employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice which is the life purpose of existence of the institution of courts. At the same time, the Hon'ble Apex Court had, while observing that the courts should do even-handed justice on merits in preference to the approach that scuttles a decision on merits, had inter alia, held that an appeal or any application may be admitted after the prescribed period if the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. For the sake of clarity, the observations of the Hon'ble Apex Court are culled out as follows:

In the result, the appeal of the assessee firm in ITA No.315/RPR/2023 for A.Y. 2019-20 is dismissed in terms of my aforesaid observations.