RUDRA GREENS APARTMENT, KANPUR V. ITO Ward 1(3)(3), , Kanpur

ITA 228/LKW/2022

AI Insights

The case involves the Rudra Greens Apartment Owners Welfare Association appealing against the decision of the Commissioner of Income Tax (Appeals), which dismissed their appeal on the grounds of limitation without discussing the merits. The Tribunal found that the dismissal was erroneous as the appeal was filed within the extended limitation period granted due to the COVID-19 pandemic. The Tribunal directed the CIT(A) to re-examine the case on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113246 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-05-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 11-12-2022
• Other Referred Cases: IN RE:COGNIZANCE FOR EXTENSION OF LIMITATION
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Period of limitation; Application of stay; Reasonable cause; Time period of passing order; Set aside
• Section: 12A; 143(1); 250

Judgement Text

I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘B’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. No.228/Lkw/2022 Assessment Year: 2019-20 Rudra Greens Apartment Owners Welfare Association, Singhpur, Kalyanpur Bithoor Road, Kanpur. PAN:AADAR5139D Vs. Income Tax Officer, Ward-1(3)(3), Kanpur. (Appellant) (Respondent) Stay Application No.04/Lkw/2022 (in I.T.A. No.228/Lkw/2022) Assessment Year: 2019-20 Rudra Greens Apartment Owners Welfare Association, Singhpur, Kalyanpur Bithoor Road, Kanpur. PAN:AADAR5139D Vs. Income Tax Officer, Ward-1(3)(3), Kanpur. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) Appeal vide I.T.A. No.82/Lkw/2022has been filed by the assessee for assessment year 2019-20 against impugned appellate order dated 18/10/2022 (DIN & Order No.ITBA/NFAC/S/250/2022-23/1046365499(1) of Assessee by Shri Rakesh Garg, Advocate Revenue by Shri Harish Gidwani, Sr. D.R. Date of hearing 29/05/2023 Date of pronouncement 31/05/2023 I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 2 Commissioner of Income Tax (Appeals) [“CIT(A)” for short]. The grounds of appeal are as under: “1. Because the CIT(A) has erred on facts and law in not condoning the delay in filing the appeal by the assessee, such delay being caused by circumstances beyond the control of the assessee and the assessee being prevented by sufficient and reasonable cause, the CIT(A) should ought to have condoned the delay, the order being bad in law be set aside. 2. Because the assessee being prevented by sufficient and reasonable cause in filing the appeal before the CIT(A), the CIT(A) has erred on facts in not condoning the delay and dismissing the appeal outright, the order passed by CIT(A) be set aside and the appeal be decided on merit. 3. Because the CIT(A) has erred on facts and in law in not deciding the appeal on merits of the case, the order passed by CIT(A) be set aside. 4. Because the CIT(A) has failed to appreciate that the assessee is a housing welfare society, its income is exempt to the extent as received from its members and applied for the benefits of its members, the assessment framed assessing the gross receipts of Rs.71,60,713/- as income ignoring and overlooking the expenses claimed is contrary to the provisions of law, the same be deleted. 5. Because the authorities below have failed to appreciate that tax is levied on net income and not on the gross income as done in the impugned assessment, the assessment order framed is bad in law be modified. 6. Because the assessee society being dependent on its Auditors for its Audit and tax compliance, the tax laws being highly technical and beyond the comprehension of a normal human being, it was prevented by sufficient and reasonable cause both in respect of filing of the return and its requisite return form as well as filing of appeal before the CIT(A), the order passed being bad in law be set aside/modified.” I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 3 (B) In this case the assessee filed appeal in the office of learned CIT(A) against the intimation dated 18/05/2020 issued u/s 143(1) of the Income Tax Act, 1961 (“IT Act” for short). The learned CIT(A) dismissed the assessee’s appeal in limine on limitation grounds. The learned CIT(A) noted that the due date for filing of appeal was 17/06/2020 whereas the appeal was filed by the assessee in the office of learned CIT(A) on 20/08/2021 after a delay of more than one year and five months. The learned CIT(A) did not condone the delay in filing of the appeal and dismissed the assessee’s appeal as time barred without any discussion on merits, by invoking section 250 read with section 249(3) of the IT Act. The present appeal has been filed by the assessee against the aforesaid impugned appellate order dated 18/10/2022 of learned CIT(A). (C) At the time of hearing before us, learned Counsel for the assessee contended that the appeal filed by the assessee in the office of learned CIT(A) was not to be treated as barred by limitation in view of the fact that period between aforesaid date of 18/05/2020 and the aforesaid date of 17/06/2020 was during the pandemic period of COVID-19 and Hon'ble Supreme Court had granted general extension from limitation for the period between 15/03/2020 to 28/02/2022. In this regard, the learned Counsel for the assessee drew our attention to synopsis, relevant portion of which is reproduced below: “The above mentioned appeal has been filed by the assessee appellant against the orders of Commissioner of Income Tax (Appeals)/(NFAC), New Delhi, order dated 18.10.2022. The said appeal has been dismissed by the CIT(A) for reasons of it being filed belatedly. It is submitted that the appeal filed is not barred by limitation: I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 4 1. The order of the CPC is dated 18.05.2020 and was received on 20.05.2020. The due date for filing the appeal was 17.06.2020. The appeal was filed on 20.08.2021, apparently after a delay of more than 1 year 5 months. 2. The reason for delay in filing the appeal was due to "corona pandemic". 3. The entire country was engulfed by pandemic and looking to the situation the Apex Court vide its decision dated 10.01.2022 suo-moto granted general extension from limitation to all for the period commencing on 15.03.2020 to 28.02.2022. 4. The time to file the appeal falls within the extended period and as per the said decision of the Apex Court, the appeal filed would be within time. 5. The relevant para of the order is as under: "In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply." Copy of the order of the Apex court is attached. Accordingly, there is no delay both the date of receipt of appeal order and the date of filing the appeal fall in the excluded period, hence there is no delay.” (C.1) The learned Counsel for the assessee also drew our attention to order dated 10/01/2022 of Hon'ble Supreme Court IN RE:COGNIZANCE FOR EXTENSION OF LIMITATION with Misc. Application No. 29 of 2022 with Misc. Application No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020, the relevant portion of which is reproduced as under: “1. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/ I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 5 applications/ suits/ appeals/ all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic. 2. On 23.03.2020, this Court directed extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders. On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. 3. Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates on Record Association (SCAORA) intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23.03.2020 relaxing limitation. The aforesaid Miscellaneous Application No.665 of 2021 was disposed of by this Court vide Order dated 23.09.2021, wherein this Court extended the period of limitation in all proceedings before the Courts/Tribunals including this Court w.e.f 15.03.2020 till 02.10.2021. 4. The present Miscellaneous Application has been filed by the Supreme Court Advocates on-Record Association in the context of the spread of the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country. Considering the prevailing conditions, the applicants are seeking the following: i. allow the present application by restoring the order dated 23.03.2020 passed by this Hon'ble Court in Suo Motu Writ Petition (C) NO. 3 of 2020 ; and ii. allow the present application by restoring the order dated 27.04.2021 passed by this Hon'ble Court in M.A. no. 665 of 2021 in Suo Motu Writ Petition (C) NO. 3 of 2020; and iii. pass such other order or orders as this Hon'ble Court may deem fit and proper. 5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 6 conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions: I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.” (C.2) In view of the foregoing the learned Counsel for the assessee submitted that the learned CIT(A) erred in dismissing the assessee’s appeal in limine, without going into merit, on grounds of limitation. (D) Learned Sr. Departmental Representative for the Revenue relied on the order of learned CIT(A). (E) On due consideration of written synopsis filed from the side of the appellant assessee and order dated 10/01/2022 of Hon'ble Supreme Court, I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 7 relevant portion of which have been reproduced in paragraph No.C.1 of this order, we are satisfied that the learned CIT(A) erred in dismissing the assessee’s appeal on grounds of limitation, without going into merits and in dismissing the assessee’s appeal in limine. We are of the view that the learned CIT(A) should have decided the issue in assessee’s appeal, on merit. Therefore, we set aside the impugned appellate order of learned CIT(A) and we direct the learned CIT(A) to decide the grounds raised in assessee’s appeal on merit through speaking order, in accordance with law, after providing reasonable opportunity to the assessee. All the grounds of the present appeal are treated as disposed of in accordance with the aforesaid directions. (F) At the time of hearing before us, the Stay Application vide S.A. No.4/Lkw/2022 was not pressed by the learned Counsel for the assessee. In any case, in view of our order in assessee’s appeal vide I.T.A. No.228/Lkw/2022, the Stay Application has become infructuous. Accordingly, the Stay Application is dismissed having been not pressed, and also having become infructuous. (G) In the result, the appeal is allowed for statistical purposes and the Stay Application is dismissed as infructuous. (Order pronounced in the open court on 31/05/2023) (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:31/05/2023 *Singh I.T.A. No.228/Lkw/2022 S.A. No.04/Lkw/2022 Assessment year:2019-20 8 Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar