Matrix Sea Foods India Ltd Vs ACIT (ITAT Hyderabad)
ITAT Hyderabad held that reasons given in the condonation application for the delay are not sufficient for condonation of such huge delay of 930 days. Accordingly, appeal dismissed as barred by limitation.
Facts- The case of the assesse was selected for scrutiny through CASS and statutory notices u/s 143(2) and 142(1) of the I.T. Act were issued to the assessee to which the A.R of the assessee appeared before the Assessing Officer from time to time and filed the requisite details. AO completed the assessment u/s 143(3) on 14.12.2017 determining the total income of the assessee at Rs.91,78,984/- wherein he made addition of Rs.22,52,673/- on a/c of gold scheme and Rs.34,52,901/- on a/c of disallowance of foreign & domestic tour expenses.
Since the assessee did not appear before the CIT(A), the CIT(A) dismissed the appeal filed by the assessee in the ex-parte order passed by him wherein he decided the issue on merit on the basis of material available on record. Aggrieved with such order of the learned CIT (A), the assessee is in appeal before the Tribunal.
Notably, the reasons explained in the condonation application and the subsequent affidavit is that the email data given in the PAN data was discontinued as the assessee could not pay the charges. The e-mail address given in Form No.35 is also not available since the service provider discontinued the service on a/c of nonpayment and the person whose email-id was given in Form 35 left the company due to some dispute, therefore, the notices sent by the CIT (A) were not received for which the assessee could not represent before the CIT (A). It is also his submission in the delay condonation application that only when the Accountant checked the I.T Portal, he found the order of the CIT (A) in the Website for which the appeal is being filed before the Tribunal with a delay of 930 days.
Conclusion- Hon’ble Bombay High Court in the case of Vama Apparels (India) (P) Ltd vs. ACIT held that where assessee filed appeal before High Court with a delay of 507 days and Sought condonation of delay stating that ex-employee of assessee who received order of Tribunal put it in his drawer and left company without informing anybody about such orders and it was only about a month before filing of instant appeal when his substitute new employee found papers from drawer, there was no sufficient explanation for delay.
Held that the reasons given in the condonation application for the delay are not sufficient for condonation of such huge delay of 930 days. We therefore, hold that the delay in filing of the appeal by 930 days by the assessee cannot be condoned. Accordingly, the appeal filed by the assessee is dismissed being barred by limitation.
FULL TEXT OF THE ORDER OF ITAT HYDERABAD
This appeal filed by the assessee is directed against the order dated 2.12.2022 of the learned CIT (A)-4 Hyderabad, relating to A.Y.2015-16.
2. Facts of the case, in brief, are that assessee is a company engaged in the business of manufacturing and trading of aqua feed and filed its return of income for the A.Y 20 15-16 on 29.09.2015 declaring total income of Rs.34,84,410/- under the normal provisions and Rs.33,73,901/- u/s 115JB of the I.T. Act. The case was selected for scrutiny through CASS and statutory notices u/s 143(2) and 142(1) of the I.T. Act were issued to the assessee to which the A.R of the assessee appeared before the Assessing Officer from time to time and filed the requisite details. The Assessing Officer completed the assessment u/s 143(3) on 14.12.2017 determining the total income of the assessee at Rs.91,78,984/- wherein he made addition of Rs.22,52,673/- on a/c of gold scheme and Rs.34,52,901/- on a/c of disallowance of foreign & domestic tour expenses. Since the assessee did not appear before the CIT (A), the CIT (A) dismissed the appeal filed by the assessee in the ex-parte order passed by him wherein he decided the issue on merit on the basis of material available on record.
3. Aggrieved with such order of the learned CIT (A), the assessee is in appeal before the Tribunal by raising the following grounds of appeal:
“1. The order of the learned Commissioner of Income Tax (Appeals) is against the law, weight of evidence and probabilities of case.
2. The learned Commissioner erred in confirming the order of the Assessing Officer wherein, total income is determined 2 Rs at Rs.91,78,984/- as against the income returned Rs.34,81,410/-.
3. The learned Commissioner erred in confirming the addition of Rs.22,34,673B/- incurred towards business promotion i.e. spent for distribution of gold coins to the dealers.
4. The learned Commissioner erred in confirming the addition of 34,52,901/- incurred towards business promotion i.e. spent for pleasure trips to abroad on dealers or to their nominees.
5. The appellant craves leave to add to, 5 Rs amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary”.
4. There is a delay of 930 days in filing of this appeal by the assessee for which the assessee has filed a condonation petition explaining the reasons for such delay which reads as under:
“The assessee obtained a paid email box from Grey Logic Technologies Pvt Ltd, for the purpose of communication, the email ID given in the pan data is as [email protected] which is discontinued as the assessee could not pay the charges for the services. In form No.35 the email address was given as [email protected]. The service provider discontinued the service on account of non payment and the person whose email id was given in Form No.35 also left the company on account of disputes on account of remuneration. Therefore, notices sent by the Appellate Commissioner by email were not received, therefore, the assessee has not present represented before Appellate Commissioner. Recently the Accountant of the company checked up the IT Portal and found the order of the Appellate Commissioner in the income tax website. Therefore, the appeal is being filed with a delay of 921 days before the Hon ‘ble ITAT. The Hon ‘ble Bench is requested to condone the delay as the delay is on account of is unavoidable circumstances mentioned above and also there is no contumacious conduct on the part of assessee in filing the appeal with 921 days. Therefore, it is prayed to condone the delay to adjudicate the issues on merits”.
5. The learned Counsel for the assessee drew the attention of the Bench to the affidavit filed by the assessee which reads as under:
“I Vempuluru Akhila d/o, V Shiva Prasad, aged about 26 years Authorized Signatory of the Appellant company R/o Plot no – 44, Vasantha Valley, Phase -1, Near Ramalayam hitefields. Kondapur, Serlingampally, KV Ran gareddy, HITEC City, Hyderabad, Telangana O008 do hereby state on oath as under:
The notices u/s 250 of the IT Act were sent by the office of the CIT(A)-4 Hyderabad, by mail using the mail id [email protected], where as in the form no 35 the assessee provided the mail as venkat6000inagmail.com and also opted not to receive the communication by email. However the notices were sent to mail id [email protected]. On account of this reason the communication of notices u/s 250 and order u/s 250 of the IT Act were not communicated to the assessee, therefore there is a delay of filing of appeal by 930 days. Considering the fact mentioned above the delay may kindly be condoned.
Place: Hyderabad
Date: 22-02-2023”
6. The learned Counsel for the assessee referring to the condonation application drew the attention of the Bench to Form 35 and submitted that in Column “Whether notices/ communication may be sent on e-mail” the assessee has mentioned “No”. He accordingly submitted that since the order of the learned CIT (A) was not received by the assessee, therefore, there was a delay in filing of this appeal and therefore, the delay should be condoned and the appeal should be admitted for adjudication.
7. Relying on various decisions the learned Counsel for the assessee submitted that when substantial justice and technical considerations are pitted against each other, the cause of justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. He accordingly submitted that the delay should be condoned and the appeal be admitted for adjudication on merit.
8. The learned DR, on the other hand, referred to the reply given by the CIT (A) regarding the non-service of appeal order to the assessee and drew the attention of the Bench to the same which reads as under:
