M/s Patiala Distt. Co-op Milk Producters Union Ltd., Patiala V. ACIT, Circle, Patiala

ITA 161/CHANDI/2021

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The case involves The Patiala Distt. Coop. Milk Producers' Union Ltd., which appealed against the order of the Commissioner of Income Tax (Appeals), Patiala, dated 25.03.2019, which dismissed their appeal for the assessment year 2013-14. The dismissal was based on the grounds of non-submission of requisite documents such as the Notice of Demand and Assessment Order during the online filing of the appeal. The assessee argued that these documents were indeed filed both electronically and physically, but the CIT(A) had not acknowledged them properly. The Tribunal found that the delay in filing the appeal was due to reasons beyond the control of the assessee, including the transition from physical to electronic filing and the impact of COVID-19, which affected the timelines for legal proceedings.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133740 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-12-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 20-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK AGGARWAL
• Keywords: Period of limitation; Set aside

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,च瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठच瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठ , च瀃डीगढ़ च瀃डीगढ़च瀃डीगढ़ च瀃डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘B’ CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER आयकर आयकरआयकर आयकर अपील अपीलअपील अपील सं संसं सं./ ITA No. 161/CHD/2021 Assessment Year : 2013-14 The Patiala Distt. Coop. Milk Producers’ Union Ltd., Sirhind Road, Distt. Patiala. बनाम VS The ACIT, Circle, Patiala. 瀡थायी लेखा सं./PAN /TAN No: AAAAT0459K अपीलाथ牸/Appellant 灹瀄यथ牸/Respondent िनधा榁琇रती क琉 ओर से/Assessee by : Shri Deepak Aggarwal, Advocate राज瀡व क琉 ओर से/ Revenue by : Shri M.P.Dwivedi, Sr. DR तारीख/Date of Hearing : 06.12.2022 उदघोषणा क琉 तारीख/Date of Pronouncement : 02.01.2023 आदेश आदेशआदेश आदेश/ORDER PER DIVA SINGH The present appeal has been filed by the assessee wherein the correctness of the order dated 25.03.2019 of CIT(A), Patiala pertaining to 2013-14 assessment year is assailed on the following grounds of appeal: 1 . The Ld. Commissioner of Income Tax (Appeals), Patiala has erred in dismissal of the assessee's appeal on the ground that no requisite documents such as Notice of Demand and Assessment Order has been attached with the online filing of appeal which is against the facts of the case. The detailed ground of appeal is separately attached. 2 . Disallowance of breakage expenses of Rs. 3,79,437/-treating it as a capital expenditure. The detailed ground of appeal is separately attached. 2. Addressing the delay of 759 days pointed out by the Registry ld. AR requested that the original Condonation of Delay application on record may be substantiated by the ITA 161 /CHD/2021 A.Y. 2013-14 Page 2 of 7 Revised Condonation of Delay application. It was also submitted that it is further supported by an Affidavit of the General Manager dated 05.12.2022 and this may also be taken on record. Ascertaining the availability of documents with the Revenue, Mr. M.P.Dwivedi was required to submit whether he needs time to go through the same. The ld. Sr.DR fairly submitted that the facts as originally stated in the Condonation of Delay application are further explained in detail in the Revised Application, hence, he would have no objection if the Revised condonation of delay application alongwith the affidavit is considered to address the delay. The documents were made available. 3. The ld. AR relying upon the application and the affidavit made a prayer that the delay of 759 days may be condoned. Referring to the document on record, it was his submission that the assessee having filed its appeal before the First Appellate Authority on 16.03.2016 remained waiting for the order to be passed and only on receipt of the impugned order, he came to know that the appeal stood dismissed on 25.03.2019. It is only thereafter on seeking the advice as to the remedy against the ex-parte order that the assessee could file the present appeal before the ITAT on 21.06.2021. Referring to the Condonation of Delay application and the Affidavit, it was submitted that immediately thereafter under ITA 161 /CHD/2021 A.Y. 2013-14 Page 3 of 7 the lockdown conditions, the delay from 15.03.2022 to 28.02.2022 stands addressed by the decision of the Apex Court in its own motion for accounting the period of limitation and thereafter, it was his submission the appeal is filed well within time. Accordingly, it was his prayer that the delay may be condoned as it has occurred for reasons beyond the control of the assessee as initially in the e-filing of the appeal before the First Appellate Authority, the defect may have been communicated via e-portal, however, no physical copy of the defect was received by the assessee. The assessee having filed its appeal before the First Appellate Authority on the e-portal was further required to file a hard copy of the appeal filed which had been done on 29.03.2016. No defect notice in response to this was received by the assessee. It was further pleaded that since this procedure of shifting from physical to e-portal was a new on-line regime, there may have been lapses at the end of the Revenue or the assessee. The fact remains that in the impugned order, it may be seen, mention is made of the fact that defect notice was issued on 11.03.2019 through the ITBA portal, however, the assessee has remained unaware of that. He was not aware that there was any information exchange through an e-portal. Considering the facts, the delay if any, may be condoned. ITA 161 /CHD/2021 A.Y. 2013-14 Page 4 of 7 3.1 Even otherwise, the impugned order, it was submitted, has been passed after a lag of three years and that also is an ex-parte. 3.2 Accordingly, lack of opportunity and lack of proper communication is evident on the face of the record. Accordingly, it was his prayer that condoning the delay, the issues may be set aside to the file of the CIT(A). 4. The ld. Sr.DR considering the record submitted that he has no objection if the delay is condoned and a decision on merits is taken after hearing the assessee by the First Appellate Authority. 5. We have heard the rival submissions and perused the material available on record. A perusal of the impugned order shows that the appeal of the assessee was instituted on 16.03.2016 and the impugned order has been passed on 25.03.2019 dismissing the assessee's appeal as defective for want of filing copy of the demand notice and the assessment order and for ready reference, the impugned order is reproduced hereunder : ORDER PASSED UNDER SECTION 250(6) OF THE ACT:- In the instant case, appellant has filed appeal for A.Y. 2013-14 on the E- Filing ITBA Portal of the Income Tax Department but failed to attach the documents required to be filed at the time of filing of appeal i.e. Form No. 35, Demand Notice and the Assessment Order passed by the concerned Assessing Officer against which the appeal is filed. Deficiency letter was issued to the appellant on 11.03.2019 through ITBA Portal providing opportunity for ITA 161 /CHD/2021 A.Y. 2013-14 Page 5 of 7 submission of requisite details/rectification of defects within 10 days of the issuance of the said letter which was not complied with by the assesee. In view of the above, the appeal is deficient and dismissed for statistical purposes. (Ashish Abrol) CIT(A) Patiala 6. A perusal of the condonation of delay application supported by the affidavit of General Manager, we find that delay is explained and stands addressed by the facts on record. For ready reference, we reproduce the contents of the Affidavit of the General Manager as under : AFFIDAVIT I Surjit Singh Bhadour (General Manager) of the Patiala Distt. Co-op Milk Producers's Union Limited, Patiala do hereby affirms and declare as under: The assessee is a Co-operative society working under the control of Punjab Coop. Milk Producer Union, Chandigarh a Punjab Government Undertaking. It is submitted that the present appeal has been filed against the order of Commissioner of Income Tax (Appeals), Patiala (briefly CIT(A)) dated 25.03.2019. The appeal of the assessee was dismissed by the CIT(A) solely on the ground that requisite details in the form of, Form No. 35, Demand Notice and Assessment Order, were not filed and therefore the appeal is deficient and dismissed for statistical purposes, however, all the impugned documents were not only e-filed (e-filing no.989032471160316 on 16/03/2016) but the same were also filed physically with the office of CIT(A) on dt 29/03/2016. It is apt and pertinent to mention here that the procedure of physical filing of appeal was changed to e-filing from 01.03.2016 and therefore the first appeal in the present matter was e-filed on 16.03.2016 and thereafter physical copy was submitted in the office of CIT(A) on dated 29.03.2016. Thereafter, a deficient notice was stated to be issued on the portal of the assessee on dated 11.03.2019, providing 10 days time to respond to the deficiencies pointed out in the said notice, however no physical notice of the said deficiency was ever served upon the assessee. However, being a new online regime the notice was skipped the attention of the concerned person, but the appeal was not deficient as the requisite documents were also physically filed on 29.03.2016. The deficiency notice dated 11.03.2019 was issued after 3 years from filing of appeal with CIT(A) on 16.03.2016. Thereafter, on receipt of the order dated 25.03.2019, the assessee on dated 04.04.2019 again filed the requisite documents, which were already supplied with Form No. 35 on 16.03.2016. Thereafter, the officials waited for the notice again from the office of the CIT(A), however the same ITA 161 /CHD/2021 A.Y. 2013-14 Page 6 of 7 didn't turned up, therefore, in March 2020 on enquiry by the officials of the Assessee it was informed by the office of the CIT(A) that now nothing can be done by CIT(A) and appeal before the Hon'ble "Income Tax Appellate Tribunal is the only available remedy for the redressal of the assessee's grievance, thereafter, assessee approached counsel for filing the appeal before this Hon'ble Court. However, in the meantime, the movements were curtailed due to outbreak of COVID 19 and therefore the Hon'ble Supreme Court on its own motion has excluded 15.03.2020 to 28.02.2022 from the period of limitation. Thereafter, the assessee contacted his counsel on dated 26.04.2021 again and it was opined that the appeal may be filed before the Hon'ble Income Tax Appellate Tribunal, Chandigarh against the impugned order passed by CIT(A) on dated 25.03.2019, due to CIT(A) inaction however, due to second wave of COVID-19, again delay has occurred and finally the said appeal was filed through Indian Post on dated 19.06.2021 received with the registry of ITAT on dated 21.06.2021 and therefore a delay of 760 days i.e. (24.05.2019 to 21.06.2021) were occurred in filing the present appeal. The delay in filing the present appeal was occurred due to afore-stated circumstances i.e. inaction at the end of CIT(A) in disposing appellant action to consider the appeal which were neither deliberate nor willful or intentional, because of the above stated unavoidable circumstances the delay has erupted in filing the present appeal. Further, the Hon'ble Apex Court on its own motion, by way of order 10.01.2022, has extended the period of limitation by excluding the period from 15.03.2020 to 28.02.2022 for the purpose of limitation, therefore technically the delay occurred in filing the present appeal is 96 days i.e. (24.05.2019 TO 14.03.2020) Sd/- DEPONENT 6.1 Accordingly, on a perusal of the peculiar facts and circumstances of the case, we find that the delay pointed out by the Registry stands addressed. In the facts of the present case, the delay has occurred for reasons beyond the control of the assessee. Hence, considering the peculiar facts of the present case and the position of law, the delay is duly condoned. We further find on considering the record that no advantage has been derived by the assessee by filing the appeal late nor any vested right of the Revenue can be said ITA 161 /CHD/2021 A.Y. 2013-14 Page 7 of 7 to be upset if the delay in the facts of the present case is condoned. Ordered accordingly. 7. In the light of the submissions of the parties before the Bench considering the nature of additions sustained by the CIT(A) on which, we find that there would be a past history of the assessee, we set aside the impugned order directing the First Appellate Authority to pass a speaking order in accordance with law considering the past history of the assessee on the issue. Needless to say that the assessee shall ensure full and proper compliance before the said authority and not abuse the trust reposed. Said order was pronounced in the Open Court at the time of hearing itself. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order was pronounced in the Open Court on 02 Janury,2023. Sd/- Sd/- (VIKRAM SINGH YADAV) (DIVA SINGH) लेखा लेखालेखा लेखा सद瀡य सद瀡यसद瀡य सद瀡य/ Accountant Member 瀈याियक 瀈याियक瀈याियक 瀈याियक सद瀡य सद瀡यसद瀡य सद瀡य/ Judicial Member “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. आयकर आयु猴 (अपील)/ The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar