Appeal dismissed by CIT(A) as time barred unjustified as appeal in physical form filed in time: ITAT Jaipur

Sarthak Contracts Pvt. Ltd. Vs ACIT (ITAT Jaipur)

ITAT Jaipur held that dismissal of appeal by CIT(A) holding it to be barred by limitation unjustified as CIT(A) failed to consider that appeal was filed in physical form and filing of appeal is not delayed.

Facts- The present appeal has been filed by the assessee is directed against order of CIT(A) for the assessment year 2014-15 mainly contesting that CIT(A) has erred in confirming disallowance under section 14A r.w. Rule 8d and that CIT(A) has wrongly dismissed the appeal holding it to be barred by limitation by not considering the fact that appeal had been filed offline on 26.10.2016.

Conclusion- Held that CIT(A) has dismissed the appeal of the assessee on the ground of inordinate delay in filing the appeal but from his both the letters, there appears no such mention as to inordinate delay of filing the appeal by the assessee and the assessee was deprived off to communicate such delay before the ld.CIT(A). Thus, there appears ambiguity in order of the ld. CIT(A) as in the notices, there is no reference of late filing of the appeal by the assessee and in concluding the appeal by the ld. CIT(A), there is mention of delay of filing of the appeal by the assessee. Hence, in such a situation the Bench is view that when the assessee had contended that appeal was filed in physical form and filing of appeal is not delayed but within time based on the submission placed on records. Thus we are of the considered view that before rejecting the appeal of the assessee the contention raised by the assessee is required to be deal with. Based on these set of facts, we direct the ld. CIT(A) to deal with that aspect of the matter and decide the appeal on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. The ld. AR of the assessee is directed to produce all the relevant papers appeal before the ld. CIT(A) to settle the dispute raised hereinabove. Thus the appeal of the assessee is allowed for statistical purposes.

FULL TEXT OF THE ORDER OF ITAT JAIPUR

This appeal filed by the assessee is directed against order of the ld. CIT(A)-4 Jaipur dated 03-01-2024 for the assessment year 2014-15 raising therein following grounds of appeal.

“1. The CIT(A) has erred in not deciding the appeal on merit, wherein disallowance under section 14A r.w. Rule 8d had been wrongly made by the AO.

2. the order passed by the ld. CIT(A) is void-ab-initio is as much as the same has been issued without a DIN, which is contrary to the CBDT Circular No. 19/2019 dated 14^th August 2019.

3. The CIT(A) has erred in intimating the DIN number of the appellate order through a separate communication. Mentioning the simultaneous issue of the DIN number is an insignificant and superfluous exercise, in the absence of mentioning the DIN number in the body of the original communication.

4. The Ld. CIT(A) has erred in dismissing the appeal on the ground of limitation ignoring the decision of Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji.

5. The Ld. CIT(A) has erred in dismissing the appeal ignoring the principle laid down by the Hon’ble Supreme Court that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be vested right in injustice being done because of a non-deliberate delay.

6. The Ld. CIT(A) has erred in dismissing the appeal holding it to be barred by limitation, not considering the fact that the appeal had been filed offline on 26.10.2016 and the appellant had been continuously receiving hearing notices from CIT(A)-2, Jaipur and had been complying them up to 2018.

2.1 At the outset of hearing, the Bench observed that there is delay of 2 days in filing the appeal by the assessee for which the ld. AR submitted that Form 36 uploaded by the assessee is not signed by the authorized person. He submitted that he got the Form 36 signed and uploaded. For this delay, the assessee apologized and submitted that the delay took place was not intentional and the same may kindly be condoned.

2.2 On the other hand, the ld. DR objected to such delay but submitted that the Court may decide the issue as deem fit and proper in the

2.3 After hearing both the parties and perusing the materials available on record, the Bench feels that the reasons as advanced by the ld. AR of the assesee in his submission has merit and the delay of 2 days in filing the appeal is

3.1 Further in this appeal, it is noted from the order of the ld. CIT(A) wherein he observed that there is delay of 2 years 2 months 2 days in filing the appeal by the assessee before him. The ld. CIT(A) elaborately discussed the issue in his order but conclusively he dismissed the appeal of the assessee by observing at page 8 of his order as under:-

‘’4…..The appellant has not shown any such reasons which prevented him from filing the appeal in time. In view of the discussion, the appeal cannot be admitted due to the delay and being out of period of limitation and the same is hereby dismissed in limine. Accordingly, the grounds of appeal are not required to be taken upon merits.

5. In the result, the appeal of the appellant is dismissed.’’

3.2 During the course of hearing, the AR of the assessee submitted that he had received a letter dated 26-11-2023 from CIT(A), Jaipur giving notice u/s 250 of the Income Tax Act 1961, wherein there is no mention of delay in filing the appeal and the details of the same are as under:-

GOVERNMENT OF INDIA
MINISTRY OF FINANCE
INCOME TAX DEPARTMENT
OFFICE OF THE COMMISSIONER OF INCOME TAX, APPEAL
CIT (A), Jaipur-4

To,

SARTHAK CONTRACTS PRIVATE LIMITED
7-NA-21, NEAR PNB JAWAHAR NAGAR
JAIPUR 302004 Rajasthan India

Notice under section 250 of the Income-tax Act, 1961

Dear Appellant,

The Income Tax Department recognizes and is sensitive to the hardships being faced by taxpayers in coping with the challenges posed by COVID 19 pandemic

2. This communication is in connection with the above referred appeal preferred by you against the order under section 143(3) of of the Income-tax Act, 1961 passed by ACIT CIR-5,JPR on 07/10/2016 for the Assessment Year 2014-15

3. The uncertainty associated with the pending appeal may be adding to your To mitigate your concerns, the Department proposes to take up the pending appeal so as to facilitate its expeditious disposal.

4. In support of your Grounds of Appeal, you are requested to furnish Ground-wise written submission, along with supporting documentary evidence(s), if Further, you are also requested to provide the information/clarification/submission/documents as per annexure.

5. As you would undoubtedly agree, in these times of COVID-19, social distancing is of utmost Importance for ensuring your safety. Therefore, you may furnish the above written submission(s) and documents electronically in E-proceedings facility through your account in e-Filing Website ( www.incometaxindiaefiling.gov.in) on or before 15/12/2023 at 11:40

6. In case the submissions are made through your authorised representative, scanned copy of duly authorised Vakalatnama be uploaded simultaneously.

7. If no submissions/information/documents is/are received within the stipulated time period, it will be presumed that you have nothing to say in this matter. The Department may proceed ahead based on material available on record.

Yours faithfully,
Sd/-
LOVISH KUMAR
CIT(A), JAIPUR-4

ANNEXURE

You are hereby informed that there is change of incumbent officer heading office of Commissioner of Income Tax, Appeals-4, Jaipur. You are hereby being provided opportunity to submit your submission/ reply, if any.

In case the appellant wishes to rely on submissions & documents filed before the Assessing Officer, it is requested to submit copies of such documents alongwith the letter/certification that these were filed before the Assessing Officer in assessment proceedings.

In case any appellate authority has earlier in any year in your case decided an issue similar to issue which is pending in the present appeal, in that case you are requested to provide a copy of such appeal order.

Vide this notice, your case is hereby fixed only for filing written submissions/reply. The case is hereby not fixed for personal hearing. In case you wish to avail personal hearing, you may attend the same on next date.

Yours faithfully,
Sd/-
LOVISH KUMAR
CIT(A), JAIPUR-4

Copy to: ACIT/DCIT,CC-1, JAIPUR

Further the ld. AR of the assessee has drawn the attention of the Bench towards the another notice of the ld CIT(A)s, Jaipur-4 wherein there is no mention of delay in filing the appeal and the another notice of the ld. CIT(A), Jaipur-4 is reproduced as under:-

GOVERNMENT OF INDIA
MINISTRY OF FINANCE
INCOME TAX DEPARTMENT
OFFICE OF THE COMMISSIONER OF INCOME TAX, APPEAL
CIT (A), Jaipur-4

To,

SARTHAK CONTRACTS PRIVATE LIMITED
7-NA-21, NEAR PNB JAWAHAR NAGAR
JAIPUR 302004 Rajasthan India

Notice under section 250 of the Income-tax Act, 1961

Dear Appellant,

The Income Tax Department recognizes and is sensitive to the hardships being faced by taxpayers in coping with the challenges posed by COVID 19 pandemic

2. This communication is in connection with the above referred appeal preferred by you against the order under section 143(3) of the Income-tax Act, 1961 passed by ACIT CIR-5,JPR on 07/10/2016 for the Assessment Year 2014-15

3. The uncertainty associated with the pending appeal may be adding to your To mitigate your concerns, the Department proposes to take up the pending appeal so as to facilitate its expeditious disposal.

4. In support of your Grounds of Appeal, you are requested to furnish Ground-wise written submission, along with supporting documentary evidence(s), if Further, you are also requested to provide the information/clarification/submission/documents as per annexure.

5. As you would undoubtedly agree, in these times of COVID-19, social distancing is of utmost Importance for ensuring your safety. Therefore, you may furnish the above written submission(s) and documents electronically in E-proceedings facility through your account in e-Filing Website ( www.incometaxindiaefiling.gov.in) on or before 22/12/2023 at 11:50

6. In case the submissions are made through your authorised representative, scanned copy of duly authorised Vakalatnama be uploaded simultaneously.

7. If no submissions/information/documents is/are received within the stipulated time period, it will be presumed that you have nothing to say in this matter. The Department may proceed ahead based on material available on record.

Yours faithfully,
Sd/-
LOVISH KUMAR
CIT(A), JAIPUR-4

ANNEXURE

In case you also wish to avail the personal hearing, you/ your authorized representative may attend the same at the date and time fixed in the notice to which this annexure is attached.

Yours faithfully,
Sd/-
LOVISH KUMAR
CIT(A), JAIPUR-4

The grievance of the ld. AR of the assessee is that there is no mention of delay as to filing of the appeal in the letters of ld. CIT(A) dated 26-011-2023 and 12-12- 2023 (supra) and in spite of that the ld.CIT(A) has dismissed the appeal of the assessee on the ground of delay of filing of the appeal by the assessee and he has not decided the appeal of the assessee on merit. As regards the alleged delay, the ld. AR of the assessee submitted that he had brought to the notice of the ld. CIT(A) that the assessee has filed physical paper form appeal on 25-10-2016 vide letter dated 9-11-2022 filed on 11-01-2022 and the same has not been considered. The ld. AR of the assessee had also drawn our attention to paper book page 21 wherein letter of ACIT/Circle-6, Jaipur is placed on record and it confirms filing of appeal by the assessee in physical form.

3.3 On the other hand, the DR supported the order of the ld.CIT(A).

3.4 The Bench heard both the parties and perused the materials available on The Bench has also gone through the order of the ld.CIT(A) who has dismissed the appeal of the assessee on the ground of inordinate delay in filing the appeal but from his both the letters (supra), there appears no such mention as to inordinate delay of filing the appeal by the assessee and the assessee was deprived off to communicate such delay before the ld.CIT(A). Thus, there appears ambiguity in order of the ld. CIT(A) as in the notices, there is no reference of late filing of the appeal by the assessee and in concluding the appeal by the ld. CIT(A), there is mention of delay of filing of the appeal by the assessee. Hence, in such a situation the Bench is view that when the assessee had contended that appeal was filed in physical form and filing of appeal is not delayed but within time based on the submission placed on records. Thus we are of the considered view that before rejecting the appeal of the assessee the contention raised by the assessee is required to be deal with. Based on these set of facts, we direct the ld. CIT(A) to deal with that aspect of the matter and decide the appeal on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. The ld. AR of the assessee is directed to produce all the relevant papers appeal before the ld. CIT(A) to settle the dispute raised hereinabove. Thus the appeal of the assessee is allowed for statistical purposes.

3.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by CIT(A) independently in accordance with law.

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

Order pronounced in the open Court on 01/08/2024.