M/s City Montessori School, Lucknow V. JCIT (OSD) Internstional Taxation, Circle, Lucknow

ITA 286/LKW/2019

AI Insights

The case involves M/s City Montessori School appealing against the order of the Commissioner of Income Tax (Appeals) dated 29/10/2018, which had dismissed their earlier appeal against the order of the Joint CIT (OSD), International Taxation, Circle-Lucknow dated 28/03/2018. The primary issue in the appeal was the timeliness of the filing. The Tribunal found that the appeal was filed 17 days late and the reasons provided for the delay were insufficient. The assessee had claimed an erroneous legal impression about the appropriate forum for redress, which the Tribunal did not find convincing. Consequently, the Tribunal dismissed the appeal without delving into the merits of the case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113252 (ITAT-LUCKNOW)
• Duration Of Justice: 4 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 09-05-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 154

Judgement Text

I.T.A. No.286/Lkw/2019 Assessment year:2016-17 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. No.286/Lkw/2019 Assessment Year: 2016-17 M/s City Montessori School, 12, Station Road, Lucknow. PAN:AAATC1819P Vs. Joint CIT (OSD), International Taxation, Circle-Lucknow. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) This appeal vide I.T.A. No.286/Lkw/2019 has been filed by the assessee for assessment year 2016-17 against impugned appellate order dated 29/10/2018 of learned Commissioner of Income Tax (Appeals) [learned “CIT(A)” for short]. (A.1) In this case order dated 28/03/2018 was passed by Learned Joint CIT (OSD), International Taxation, Circle-Lucknow (“learned Jt. CIT” for short). The assessee’s appeal against the aforesaid order dated 28/03/2018 of learned Jt. CIT was dismissed by learned CIT(A) vide impugned order dated 29/10/2018. The present appeal, before us, has been filed by the assessee against the aforesaid impugned appellate order dated 29/10/2018. On perusal of records, we find that registry has made a noting vide order sheet dated 13/05/2019 that this appeal is time barred by 17 days. As per Form- Appellant by Shri Jitendra Kumar Yadav, Advocate Respondent by Shri Sanjeev Krishna Sharma, Senior Departmental Representative (“Sr. DR" for short) I.T.A. No.286/Lkw/2019 Assessment year:2016-17 2 36 (in which this appeal has been filed by the assessee) date on which aforesaid impugned appellate order dated 29/10/2018 of learned CIT(A) was served on the assessee/communicated to the assessee is 22/02/2019. This appeal has been filed on 10/05/2019. Accordingly, having regard to due date of filing of appeal prescribed u/s 253(3) of the IT Act, the remark of the registry that this appeal is time barred by 17 days is correct. However, in the application dated 15/03/2021 filed by the assessee, seeking condonation of delay, it is mentioned that the delay was of approximately 10 days (instead of 17 days as per aforesaid remarks of the registry). The assessee has sought condonation of delay on the ground that the assessee was under an erroneous impression of law that application u/s 154 of the Act had to be filed before CIT(A)-1 seeking redressal of his grievances against the impugned order. The relevant portion of the assessee’s application dated 15/03/2021, seeking condonation of delay, is reproduced as under: “1. That the impugned order of Ld. CIT (Appeals)-1 Dt. 29.10.2018 was received by the assessee on 22.02.2019 and hence the original period of limitation to file the appeal before the Hon'ble ITAT was available till 23.04.2019. 2. That assessee was under an erroneous impression of law that application U/s 154 of the Income Tax Act has to be filed before Commissioner of Income Tax (Appeals)-1, seeking redressal of its grievance against the IMPUGNED Order, since it was decided quorum non judice. 3. That, while evaluating its options, the assessee was ultimately advised that the impugned order is liable to be assailed before Hon'ble ITAT. This confusion about correct forum to redress its grievance consumed some time and caused a delay of approximately 10 days. The delay is also commutable in view of Section 14 of Limitation Act. 4. That due to above mentioned reason the appeal got filed delayed and came to be filed before the Hon'ble Tribunal only on 03.05.2019. I.T.A. No.286/Lkw/2019 Assessment year:2016-17 3 5. The above caused a delay of approximately 10 days. This delay, caused due to the unfortunate circumstances, beyond the control of the assessee, deserves to be condoned and it is prayed that the appeal may kindly be heard on merits.” (A.2) In affidavit filed from the assessee’s side, verified on 19/03/2021 also condonation of delay has been sought for approximately 10 days on the ground that there was difference of legal opinion. The relevant portion of the affidavit is reproduced below: “2. That the annexed application for condonation of delay dt. 15.03.2021 has been prepared on my instructions and I have read- over the same and have approved the contents therein. 3. There is a short delay of approximately 10 days, in the filing of the instant appeal. This delay, got occasioned to difference of legal opinion gathered in the matter, erroneously; accordingly the delay deserves to be condoned and it is prayed that the appeal may kindly be heard on merits. There is no malafide in not filing the appeal within the prescribed imitation and there is no prejudice caused to Revenue.” (B) We have perused the aforesaid application dated 15/03/2021 and the aforesaid affidavit, verified on 19/03/2021, and filed from the assessee’s side seeking condonation of delay. When there is delay of 17 days, it is beyond our understanding why condonation for delay of only approximately 10 days has been sought from the assessee’s side in the aforesaid application and in the affidavit. Further, u/s 253(3) of the IT Act, the appellant gets 60 days for filing appeal in ITAT. During this period of 60 days, the assessee has to take whatever legal opinions or legal consultations the assessee desires or needs to have. No satisfactory reason has been advanced from the assessee’s side to explain why this period of 60 days, prescribed u/s 253(3) of the IT Act, should be extended in the case of the assessee for taking legal opinions/consultations. Further, in response to specific query from the Bench, learned Counsel for the assessee informed that the assessee did not file any rectification petition in the office of learned CIT(A) seeking any relief, as far as the impugned appellate order dated I.T.A. No.286/Lkw/2019 Assessment year:2016-17 4 29/10/2018 of learned CIT(A). Therefore, as it turns out, the assessee neither filed an application for rectification in the office of the learned CIT(A) nor did the assessee file appeal in ITAT within the time prescribed u/s 253(3) of the IT Act. Therefore, the claim that the assessee was considering filing of application u/s 154 of the Act in the office of learned CIT(A) is also devoid of any merit. For the aforesaid reasons, we find no merit in the assessee’s application for condonation of delay in filing of this appeal. In any case, condonation of delay has been sought from the assessee’s side, only for a period of approximately 10 days whereas the delay is of 17 days. Thus, for the remaining approximately 7 days (17 days minus approximately 10 days), the assessee has not even requested for condonation of delay. Thus, even if for the sake of discussion, the assessee’s request for condonation of delay for approximately 10 days is accepted, even then the appeal remains barred by limitation by above said period of approximately 7 days. Therefore, we dismiss this appeal in limine, being barred by limitation, without going into merits of the appeal. (C) In the result, the appeal of the assessee stands dismissed. (Order pronounced in the open court on 21/08/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:21/08/2023 *Singh 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