SHREE KUTCH NALIA BHANUSHALI MITRA MANDAL, MUMBAI V. ITO (EXEM), WARD-2(3), MUMBAI

ITA 2226/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6388 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-10-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 19-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITHA V. NAIR
• Keywords: Benefit of exemption; Condonation of delay; Bonafide mistake; Set aside
• Section: 11; 119(2)(b); 10B; 143(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI N. K. CHOUDHRY, JM I.T.A. No. 2226/Mum/2023 Assessment Year: 2016-17) Shree Kutch Nalia Bhanushali Mitra Mandal C/o Suryavanshi Stores Tarun Bharat Society, Chakala Andheri, Maharashtra PAN No. AAFTS 0619 A Vs. ITO-(Exemption), Ward 2(3), Mumbai Appellant) : Respondent) Appellant/Assessee by : Shri Aditya Ramachandran Revenue/Respondent by : MS Smitha V. Nair Date of Hearing : 03.10.2023 Date of Pronouncement : 18.10.2023 O R D E R Per N. K. Choudhry, JM: The Assessee has preferred this appeal against the order dated 24.04.2023 impugned herein passed by National Faceless Appeal Centre (NFAC), Delhi {in short ‘NFAC’}/ Ld. Commissioner of Income Tax (in short “ Ld. Commissioner”) u/s 250 of the Income Tax Act 1961 (in short ‘the Act’). 2 ITA No.2226/Mum/2023 Shri Kutch Nalia Bhanushali Mitra 2. In the instant case, the CPC/AO vide intimation/order dated 2 nd Jan, 2019 u/s 143(1) of the Act for A.Y under consideration, denied the exemption benefits u/s 11 of the Act, due to non filing of audit report in form 10B online within the due date as prescribed, against which the Assessee preferred first appeal before the ld. Commissioner with a delay of more than 38 months in filing the appeal, who dismissed the same in limine, by not condoning such delay mainly on the reason that even during the course of appellate proceedings, the Assessee neither accepted any delay in filing the appeal nor made any request in respect of condonation of delay in filing the appeal. 3. The Assessee before this Bench submitted that after the intimation/order dated 2 nd Jan, 2019, the Assessee instead of filling first appeal beforethe ld. Commissioner, preferred an application dated 14 th Sept, 2021 u/s 119(2)(b) of the Act for condonation of delay in filing Form 10B of the Act, before the ld. CIT(E), who vide order dated 8 th March, 2022, rejected the said application and did not condone the delay in filing of Form No. 10B of the Act. Thereafter immediately on dated 11 th March, 2022 the Assessee preferred first appeal before ld. Commissioner with a delay of approximately 38 months. 3 ITA No.2226/Mum/2023 Shri Kutch Nalia Bhanushali Mitra The ld. AR, Sh. Aditya Ramachandran honestly conceded that though there was delay in filing of first appeal before the ld. Commissioner however, it is correct that in Column No. 14 of the Form No. 35, the Assessee given answer “ No” to the question “whether there is delay in filing appeal”. The ld. Counsel prayed that answer “No” may be inadvertently or due to bonafide mistake has been written and therefore the same may be considered as bonafide mistake or unintentional and thus lenient view may be taken and the Assessee be given an opportunity of being heard, may be by putting any condition. 4. On the contrary, ld. DR refuted the claim of the Assessee and emphasized that the action and admission by mentioning “NO” in the column No. 14, which pertains to the details qua delay in filing the appeal, the Assessee misleaded the ld. Commissioner and even otherwise the reason submitted by the Assessee is neither bonafide nor logical, hence the appeal of the Assessee may be dismissed and impugned order may be confirmed. In any eventuality, if the case is remanded to the file of ld. CIT(A) then heavy cost may be imposed . 5. Having heard the parties and perused the material available on record and given thoughtful consideration to the peculiar facts and circumstances of the case, I observe that the intimation/ order dated 2 nd Jan, 2019 was passed u/s 143(1) of the Act, 4 ITA No.2226/Mum/2023 Shri Kutch Nalia Bhanushali Mitra whereby the benefits of section 11 of the Act were denied to the Assessee for non-filing of Form-10B online along with return of income. The Assessee instead of challenging the said intimation/order dated 2 nd January, 2019 before the ld. Commissioner in first appeal, preferred an application u/s 119(2)(b) of Act for condonation of delay in filing Form-no. 10B before the ld. Commissioner Mumbai, which was rejected vide order dated 8 th March, 2022 and thereafter immediately, the Assessee on dated 11 th April, 2022 challenged the intimation/order dated 2 nd January, 2019 by filling first appeal before the ld. Commissioner in which in column no. 14 of form 35 “whether there is a delay in filing the appeal” written “NO” and denied the delay and thereafter as well not acted diligently as it neither accepted any delay in filling of appeal nor made any request qua condonation of delay, as observed by the ld. Commissioner, therefore the Assessee do not deserve any leniency. However, considering the peculiar facts and circumstances in totality, as the Assessee remained entangled with the proceedings before wrong forum may be due to wrong advise or un-intentional or bonafide mistake, which culminated into the delay for availing appropriate statutory remedies before appropriate Forum/Authority, hence for the just decision of the case and ends of the justice, but subject to deposit of Rs. 11,000/- in the “National Relief Fund” within 30 days of its order, I am inclined to set aside the impugned order and remand the instant case to the file of ld. CIT(E) for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee. Accordingly the case is remanded to the file of Ld. Commissioner. 5 ITA No.2226/Mum/2023 Shri Kutch Nalia Bhanushali Mitra 6. In the result, appeal filed by the Assessee stands allowed for statistical purposes. Order pronounced in the open court on 18-10-2023. Sd/- (N. K. CHOUDHRY) Judicial Member SK, Sr.PS. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. DR, ITAT, Mumbai 4. 5. Guard File CIT BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai