M/s. Neesa Technologies Ltd, Ahmedabad V. The DCIT Central Circle-2(2), Ahmedabad

ITA 426/AHD/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4786 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 30-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAI PRATAP SINGH; V.K. SINGH
• Keywords: Principle of natural justice; Reasonable cause; Corroborative evidences
• Section: 143(3); 271E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH Before: Ms. Annapurna Gupta, Accountant Member And Shri TR Senthil Kumar, Judicial Member M/s. Neesa Technologies Ltd. 9 th Floor, Cambay Grand, Near Sola Overbridge, Thaltej, Ahmedabad-380054 PAN: AABCG5430A (Appellant) Vs The DCIT, Central Circle-2(2), Ahmedabad (Respondent) Appellant by : Shri Abimanyu Singh Bhati, A.R. Respondent by : Shri Ajai Pratap Singh, CIT/DR & Shri V.K. Singh, Sr. D.R. Date of hearing : 14-06-2022 Date of pronouncement : 22-06-2022 आदेश/ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:- The present appeals pertain to the same Assessee and have been filed against separate orders passed by the Commissioner of Income Tax (Appeals)-12, Ahmedabad, (in short referred to as CIT(A)), both dated 11- 03-2020, u/s. 250(6) of the Income Tax Act, 1961(hereinafter referred to as the “Act”). While the appeal In ITA No. 426/Ahd/2020 is against the order passed by the ld. CIT(A) in appeal against assessment framed u/s. 143(3) of the Act for Assessment Year (A.Y) 2013-14, the appeal in ITA No. ITA Nos. 495 & 426/Ahd/2020 Assessment Year 2014-15 & 2013-14 I.T.A No. 495 & 426/Ahd/2020 A.Y. 2014-15 & 2013-14 Page No M/s. Neesa Technologies Ltd. vs. DCIT 2 495/Ahd/2020 is against the order passed by the ld. CIT(A)in appeal against order levying penalty u/s. 271E of the Act for A.Y 2014-15. 2. At the outset itself, Ld.counsel for the assessee contended that the grievance of the assessee in both the appeals is the same. He pointed out that in both the cases, the appeal of the assessee was dismissed by the ld. CIT(A) by not condoning the delay in filing appeal before the ld. CIT(A) and on account of non-prosecution of the appeal by the assessee. He contended that identical grounds were therefore raised in both the appeals as under: 1. The learned Commissioner of Income-tax (Appeals) erred in law and on facts in adjudicating appeal ex-parte, without serving the notice(s) of hearing on the appellant. 2. The learned Commissioner of Income-tax (Appeals) erred in law in dismissing the appeal ex-parte especially, when an application dated 16th July, 2019 for consolidation of its appeals [before CIT(A)-7, CIT(A)-9 and CIT(A)-12] has been pending before the Id. Principal Commissioner of Income Tax, Gujarat, Ahmedabad, 3. The learned Commissioner of Income-tax (Appeals) erred in law and on facts in holding that the appeal is not maintainable u/s 249 as the reasons given for delay of 44 days in filing appeal were without any supporting evidence when the Id. CIT(A) passed the order without affording an opportunity to the appellant to file the same. 4. Without prejudice to the above, the learned Commissioner of Income-tax (Appeals) erred in law and on facts in issuing notice(s) through email, when the appellant had specifically mentioned in Form No.35 that notice(s) may be not sent through email. 3. Ld. Counsel for the assessee thereafter proceeded to point out that with respect to delay in filing of appeal, the assessee had mentioned in his Form I.T.A No. 495 & 426/Ahd/2020 A.Y. 2014-15 & 2013-14 Page No M/s. Neesa Technologies Ltd. vs. DCIT 3 No. 35, the prescribed form for filing appeal before the ld. CIT(A), the reason for the delay .The same was pointed out to us as reading as under: "Sir as the management of the company was not available during this period due to various legal issues this could be done on timely basis. The assessee request you to kindly condone the delay." 4. He further contended that no notices of hearing by the Ld.CIT(A) was served on the assessee and therefore the assessee could not explain in detail the reasons for the delay in filing appeal. He thereafter contended that the non-compliance of the notices for hearing by the ld. CIT(A) was also on account of the fact that the same were not served on the assessee. Ld.counsel for the assessee pointed out that In Form No. 35 of the appeal filed to the Ld.CIT(A) the assessee had clearly mentioned that the notices not be served on e-mail. He contended that probably the notices were sent by e-mail and therefore the same were not received by the assessee. He further pointed out that even the order of the Ld. CIT(A) does not point out the date of service of notices. In view of the above, he contended that there was reasonable cause with the assessee for not appearing before the ld. CIT(A) and explaining the delay . He pleaded therefore that the appeals be restored back to the ld. CIT(A) for consideration afresh. 6. Ld. D.R. however relied on the order of the ld. CIT(A) at Para 4 to 6 is as under: 4. Since the reason given by the appellant is not acceptable as a good and sufficient reason for making the delay in filing of the appeal. Merely self serving contention given by the assessee without any supporting evidences the I.T.A No. 495 & 426/Ahd/2020 A.Y. 2014-15 & 2013-14 Page No M/s. Neesa Technologies Ltd. vs. DCIT 4 authenticity of the reasons given is not verifiable. The general reasons for such a huge time cannot be accepted unless those are specific and verifiable from the records. Even in the appellate proceedings no compliance has been made by the assessee inspite of sufficient opportunities granted- discussed as above following the principle of natural justice. Therefore, the reasons explained by the appellant without adducing the evidences in support for making the delay for grant of condonation is not accepted and hence the condonation is rejected for want of good and sufficient reasons. This view is supported by the following decisions / judgments;- 5, In this regard the decision of the Hon’ble Mumbai Tribunal in the case of Prashant Projects Ltd. vs. DCIT (2013) 37 taxraaiitt.com 137 is significant which is in favour of the revenue holding that by adopting a liberal view in condoning delay is one of the guiding principles in the realm of belated appeals, but liberal approach cannot be equated with a license to file appeals at will-disregarding the time-limits fixed by the Statutes. The behavior of the assessee could be termed as personified in action and negligence which would not constitute reasonable cause. 5.1 Further, Hon'ble Apex Court in the case of Vedabal Alias Vaijayaaatabai Baburao Patll Vs. Shantaram Baburao Patil, 253 ITR 798, it was held as follows;- “In exercising discretion under section 5 of the Limitation Act, the Court should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such case deserves a liberal approach, 5.2. Further, ITAT, Chennai In the case of JCIT vs. Tractors & Farm Equipments Ltd. it was held as under :- "The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In I.T.A No. 495 & 426/Ahd/2020 A.Y. 2014-15 & 2013-14 Page No M/s. Neesa Technologies Ltd. vs. DCIT 5 granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon’ble Supreme Court in the case of Ramlal vs. Rewa Coalfields Ltd. AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoid cannot be a sufficient causer within the meaning of the limitation provisions. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clear hands.” 5.3. Bijaya & Co. Vs. ITO (1986) 17 ITD 1021 (Hon’ble Calcutta ITAT) 6. Since the appeal is found not maintainable and hence not entertained being not filed as per the time limit prescribed u/s.249 of the.LT. Act-and hence the same is not decided on merits. In the result, the appeal is dismissed as not entertained. 7. We have heard the contentions of the both the parties and we are convinced with the arguments of the ld. Counsel for the assessee, that he had bonafide reasons for not appearing before the ld. CIT(A). We have noted from the orders of the Ld. CIT(A) that no date of service of notice has been mentioned therein. We have also noted that the assessee had categorically mentioned that the notices be not served on the e-mail of the assessee. The explanation of the assessee therefore is probable that the notices possibly could not be served on the assessee and hence the non- compliance. Moreover, the assessee had given a brief reason for the delay I.T.A No. 495 & 426/Ahd/2020 A.Y. 2014-15 & 2013-14 Page No M/s. Neesa Technologies Ltd. vs. DCIT 6 in the filing of the appeal and if given an opportunity before the ld. CIT(A) he would have elaborated further the reasons for the delay. 8. Considering the entire facts and circumstances of the case therefore in the interest of justice we consider it fit to restore the appeal back to the ld. CIT(A) to be heard afresh including the aspect of condonation of delay. 9. In view of the above, both the appeals of the Assessee are allowed for statistical purposes. Order pronounced in the open court on 22-06-2022 Sd/- Sd/- (TR SENTHIL KUMAR) (ANNAPURNA GUPTA) JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER Ahmedabad : Dated 22/06/2022 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, अहमदाबाद