ITO, WARD-5, PATIALA vs. SH. KAWALJEET SINGH, PATIALA

आयकर अपीलीय अिधकरण,च"डीगढ़ "यायपीठ “ए” , च"डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “A”, CHANDIGARH HEARING THROUGH: PHYSICAL HEARING "ी िव"म "सह यादव, लेखा सद"य एवं "ी परेश एम. जोशी, "याियक सद"य BEFORE: SHRI. VIKRAM SINGH YADAV, AM & SHRI. PARESH M. JOSHI, JUDICIAL MEMBER आयकर अपील सं./ ITA NO. 446 TO 448/Chd/2023 िनधा"रण वष" / Assessment Year : 2018-19 TO 2020-21 The ITO, बनाम Shri Kawaljeet Singh, Prop. M/s Daffodils Printers, 2nd Gol Ward-5, Patiala Chakkar, Factory Area, Patiala, Punjab "ायी लेखा सं./PAN NO: ACBPS1522N अपीलाथ"/Appellant ""यथ"/Respondent िनधा"रती क" ओर से/Assessee by : None राज"व क" ओर से/ Revenue by : Smt. Amanpreet Kaur, Sr. DR सुनवाई क" तारीख/Date of Hearing : 18/04/2024 उदघोषणा क" तारीख/Date of Pronouncement : 06/05/2024 आदेश/Order PER BENCH :

All the above appeals filed by the Revenue arising out of the separate orders passed by CIT(A)/NFAC Delhi as per the details given below:

Appeal Number & Assessment Year Date of CIT(A)/ NFAC, Office of CIT(A)/NFAC Delhi order 13/09/2022 NFAC, Delhi A.Y. 2018-19 13/09/2022 NFAC, Delhi A.Y. 2019-20 13/09/2022 NFAC, Delhi A.Y. 2020-21

5.1 The Id. CIT(A), vide its order dated 13/09/2022 passed in appeal No.NFAC/2017-18/10153731 allowed the appeal. The Id. CIT(A) held that the amendment which has been brought in by the Finance Act, 2021 shall apply we.f. assessment year 2021-22 and subsequent assessment years and the impugned assessment year being assessment year 2018-19, the said amendment cannot be applied in the instant case. The Id. CIT(A) further directed that the addition made by way of adjustment while processing the return of income us 143(1) of the Act so made by the CPC towards the deposit of employees' contribution towards ESI and PF, paid before the due date of filing of the return of income u/s 139(1) of the Act be deleted.

5.2 It was submitted that on a similar issue, the Hon'ble Supreme Court in the case of M/s.Checkmate Services Pvt. Ltd. Vs. CIT, Civil Appeal No. 2833 of 2016 has held that if an assessee deposits amounts held/retained by him as employee's contribution to EPF/ESI etc. after the due date (i.e. the date as per the relevant Act), disallowance u/s 36(l)(va) would be attracted and provisions of section 43B, where due date is taken as date of filing of ITR, would not come to the rescue of the assessee.

5.3 It was further submitted that since the tax effect involved in this case was less than the prescribed monetary limit, for filing of further appeal before the ITAT, the appeal was not filed at initial stage. Further, the impact of the decision in Checkmate Services (supra) was not considered. It was submitted that in the light of decision of Hon'ble Supreme Court in Checkmate Services, its impact on such similar cases has been considered and the instant case falls under the category to which the decision in Checkmate Services applies.

5.4 It was further submitted that since the order of Ld. CIT(A) was passed on 13.09.2022 & it was received on the same date in the PCIT office through ITBA, hence the due date for filing appeal before the ITAT had expired. In this case, there was sufficient cause for delay since the decision of the Hon'ble Supreme Court in the case Checkmate Services (supra) has now been considered which is squarely applicable to the instant case.

5.5 It was submitted that the Hon'ble Calcutta High Court in a recent case PCIT Vs. M/s. Organon India Pvt. Ltd. (ITAT/16/2020 dated 15/06/2022) held in its order dated 15.06.2022 that where there is a substantial question of law involved, appeal should not be rejected on technical ground of delay. The High Court in this case condoned a delay of 314 days in filing appeal by Revenue.

5.6 In view of the above facts, it was submitted that delay of 242 days may kindly be condoned in this case and the appeal of the Revenue be accepted and decided taking into consideration the decision of the Hon’ble Supreme Court referred supra. 6. We have heard the Ld. DR and perused the material available on the record. The Hon'ble Calcutta High Court in PCIT Vs. M/s. Organon India Pvt. Ltd. (supra) while condoning the delay of 314 days in filing the appeal by the Revenue has held that where the Court is required to examine as to whether any substantial question of law would arise for consideration, the appeal should not be dismissed on technical ground and the relevant findings read as under: “This application has been filed by the revenue to condone the delay of 314 days in filing the appeal. The respondent/assessee has filed affidavit-

in-opposition to which an affidavit-in-reply has been filed by the appellant. Mr. Paras 2 Salva, learned Advocate assisted by Mr. A. K. Dey, learned Advocate would vehemently contend that the affidavit filed in support of the condone delay petition, does not give any reason for the inordinate delay of 314 days in filing the appeal and the respondent has clearly mentioned about the various period during which there has been no explanation for the delay. In support of his contention, the learned Advocate has referred to the decision of the Hon’ble Supreme Court in the case of Union of India vs. Central Tibetian School Administration & Ors. reported in 2020 (21) SCC Online SC 119 as also the celebrated decision of the Hon’ble Supreme Court in the case of Post Master General vs. Living Media India Ltd. reported in 2012 (3) SCC 563. These decisions have been pressed into service to support the contention that when no explanation is offered, the Courts should not condone the delay and a separate law of limitation is not available for the Government and Governmental authorities and they are also to be treated in the same yardstick. In Living Media India Limited the Hon’ble Supreme Court took note of the decision in the case of Collector (LA) Vs. Katiji [1987] 2 SCC 107 where the Hon’ble Supreme Court pointed out various principles while considering the expression “Sufficient Cause”. Some of the relevant principles would be that ordinarily a litigant does not stand to benefit by lodging an appeal laid; refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and 3 cause of justice would be defeated; when substantial justice and technical consideration are pitted against each other because of substantial justice reserve to be deferred for the other side cannot claim to have vested right if injustice being done because of non deliberate delay. As pointed out earlier, there is a delay of 314 days in filing the appeal. The learned Advocate appearing for the respondent/assessee is right in submission of certain period of the delay remains unexplained. However, bearing in mind the legal principles which has been laid down by the Hon’ble Supreme Court if we examine the matter, we are of the view that since the present appeal has been filed under Section 260A of the Income Tax Act, 1961 and the Court is required to examine as to whether any substantial question of law would arise for consideration we are of the view that the appeal should not be thrown out on technical ground. That apart we find that Tribunal had referred to a decision of the Co-ordinate Bench in the case of Philips India Ltd. Vs. ACIT in ITA/2489/Kol/2017 dated 4.4.2018. We are informed that as against the said order appeal has been preferred before this Court at the instance of the department and the same is pending. If such is the case, we are of the view that ends of justice would be met if we exercise discretion and condone the delay in filing the appeal. For such reason, the application is allowed and the delay in filing the appeal is condoned.”

the prescribed threshold and even in cases where the tax effect exceeds the prescribed threshold, the appeal has to be filed basis the merits of the case and not necessarily in all cases.

than the monetary limits specified in para 3 above or there is no tax effect- (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires. or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where addition relates to undisclosed foreign income/undisclosed foreign assets (including financial assets)/ undisclosed foreign bank account. (e) Where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ ED/ DRl/ SFIO/ Directorate General of GST Intelligence (DGG1). (f) Cases where prosecution has been filed by the Department and is pending in the Court.” 11. In paragraph 13, it has been provided that this circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HC/Tribunal and it shall apply retrospectively to pending SLPs/appeals/Cross objections/references and the pending appeals below the specified tax limits may be withdrawn/not pressed. We therefore find that even where the appeals have been filed before the Hon’ble High Courts and Hon’ble Supreme Court and which have been admitted as involving substantial question of law, the CBDT instructions provides that such matters should be withdrawn/not pressed and only criteria for such a decision is that such matters should be involving tax effect below the prescribed limits. 12. In the instant case, it is an admitted and undisputed position that the tax effect involved in the present appeal is Rs. 1,04,140/- well below the prescribed threshold. Further, the matter doesn’t fall under any of the exceptions so carved out in terms of the aforesaid CBDT Circular as amended.

आदेशानुसार/ By order, सहायक पंजीकार/