Shri. Mavinahalli Shivananjappa Vijay Kumar, Bengaluru V. Deputy Commissioner of Income-Tax, Circle-1(1)(1), Bangalore

ITA 673/BANG/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5661 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 10-09-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation
• Section: 43B; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI BEENA PILLAI, JUDICIAL MEMBER ITA No.673/Bang/2023 Assessment year : 2018-19 Mavinahalli Shivananjappa Vijay Kumar, No.5771, 1 st Floor, Shrinidhi Nilaya, Govindappa Layout, Subbash Nagar, Nelamangala, Bengaluru. PAN – CBKPS 5775 B Vs. The Asst. Commissioner of Income- tax, Centralized Processing Center, Bengaluru. APPELLANT RESPONDENT Assessee by : Shri Prakash Hegde, C.A Revenue by : Smt. Priyadarshini Baseganni, JCIT (DR) Date of hearing : 01.11.2023 Date of Pronouncement : 03.11.2023 O R D E R Per Beena Pillai, Judicial Member Present appal arises out of the order dated 30/03/2023 passed by the NFAC, Delhi for assessment year 2018-19. “1. That the learned Commissioner of Income Tax (Appeals) [`CIT(A)'] erred on facts and circumstances of the case and in law by confirming the Intimation issued under section 143(1) of the Income Tax Act, 1961 ('the Act') by the Assistant Director of Income Tax, Centralized Processing Center ('the AO'). ITA No.673/Bang/2023 Page 2 of 5 2. The learned CIT(A) has erred in confirming the order of the learned AO who has disallowed the amount of Employee Provident Fund ('EPF') Contribution of Rs 58,22,432 and ESI contribution of Rs 43,58,645 though the same have been paid by the Appellant to the concerned authorities before the due date for filing of the income-tax return. 3. The learned CIT(A) has erred in considering that the amendments to section 36(i)(va) [by inserting Explanation i] and section 43B of the Act made by Finance Act 2021 are retrospective. 4. The learned CIT(A) has erred in considering that the AO (i.e. CPC) had the authority to make adjustments under section 143(1)(a) of the Act in the facts and circumstances of this case. 5. The learned CIT(A) erred in passing the order ignoring / misinterpreting the decisions of the higher appellate authorities. That the Appellant craves leave to add to and / or to alter, amend, rescind, modify, the grounds herein above or produce further documents before or at the time of hearing of this appeal.” 2. At the outset the ld.AR submitted that there is a delay of 105 days in filing the present appeal before this Tribunal. He is submitted that along with the application for condonation of delay, the assessee has also filed an Affidavit dated 08/09/2023, wherein the reasons that caused the delay has been explained. The ld.AR submitted that the assessee is located in semi urban area and that the notice and documents uploaded are cannot be downloaded due to lack of internet facilities. The same missed out to be notice and the email that was sent attaching the order of the ld.NFAC dated 30/3/2023. It was subsequently, when the representative of the assessee logged on to the portal come to know that the order has been passed by the ld.CIT(A) and immediately necessary steps were taken to file appeal before this Tribunal. ITA No.673/Bang/2023 Page 3 of 5 3. The ld.AR submitted that it is only on August 2020 that it came into the knowledge of the assessee regarding the impugned order being posted and appeal was filed. Subsequently, on 06/09/ thereby causing a delay of 105 days. The ld.AR thus submitted that the delay cannot be attributable to the assessee and there was bonafide reason for not having filed the present appeal within the period of limitation. He thus prayed for condonation of the delay of 105 days. 3.1 On the contrary, the ld.DR though vehemently opposed could not bring out anything on record contrary to the submission of the ld.DR. 3.2 We perused the submission advanced by both sides. Admittedly, there is a delay of 105 days in filing the present appeal before this Tribunal. The bonafide reason for such delay was stated by the assesee. We do not find any malafide intention of the asseseee in causing such delay to file the present appeal. There is a reasonable cause in the delay to the present appeal in our opinion. 3.3 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. We have to prefer substantial justice rather than technicality in deciding the issue. As observed by Hon’ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji & Ors.(supra), if the ITA No.673/Bang/2023 Page 4 of 5 application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. We are satisfied that the delay in filing the appeal was due to reasonable and sufficient cause and the delay in filing the appeal deserves to be condoned. Respectfully following the above view, we condone the delay of 105 days in filing the appeal before this Tribunal. 4. On merits of the case, the Ld.AR submitted that the issues raised in the present appeal is regarding the disallowance of employees contribution towards PF/ESI that has been disallowed u/s 36(1)(va) of the Act for having deposited with the respective authorities beyond the due date. At the outset, admittedly this issue is against assessee by the virtue of the decision of Hon’ble Supreme Court in the case of Checkmate Services Pvt. Ltd. reported in (2022) 143 taxmann.com 178. The ld.DR also supported the view of the Hon’ble Supreme Court and submitted that the disallowance has been rightly made by the authorities below. He submitted that the ld.CIT(A) has also relied on the decision of Hon’ble Supreme Court in case of Checkmate Services (Supra). 5. We have perused the record and orders of the authorities, we note that the issue contested in this present appeal is against the assessee by virtue of the ratio given by the Hon’ble Supreme Court in the case of Checkmate Services Pvt ltd Vs CIT (Supra). We accordingly do not find any merit in the ground of appeal raised by the assessee and the same is dismissed. The order of Ld.CIT(A) is thus uphold. ITA No.673/Bang/2023 Page 5 of 5 In the result, the appeal of the assessee is stands dismissed. Order pronounced in court on 3 rd day of November, 2023 Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, 3 rd November, 2023 / vms / Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore