2023 (2) TMI 301

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....A No.1044/Bang/2022 is as under:- "1. That the order of the learned Commissioner of Income-tax (Appeals) in so far it is prejudicial to the interests of the appellant is bad and erroneous in law and against the facts and circumstances of the case. 2.. That the learned Commissioner of Income-tax (Appeals) erred in law and on facts in deciding the appeal ex-parteon the ground that the appellant did not respond to the hearing notices and such finding is perverse as the appellant has sought adjournment. 3. That the learned Commissioner of Income-tax (Appeals) erred in law and on facts in not appreciating the fact that the faceless appeal scheme was newly introduced and therefore, the appellant was not aware of the procedure that all the hearing notices will be issued only to the assessee's registered email ID and therefore, could not file all the responses. 4. That the learned Commissioner of Income-tax (Appeals) erred in law and on facts for not condoningthe delay in filing the appeal before him on the ground that the appellant has crossly negligent and such a finding of the learned Commissioner of Income Tax (Appeals) is perverse. 5. T....

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....income filed on 26.10.2019 is well within the due date specified u/s 139(1) of the Act and therefore, eligible for deduction u/s 80P(2) of the Act. 4.. That the learned Commissioner of Income-tax (Appeals) ought to have held that the disallowance of deduction u/s 80P(2) of the Act for not filing the return of income within due date will not fall under the purview of S. 143(1) of the Act. Each of the above grounds is without prejudice to one another, the appellant seeks the leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or modify otherwise each or any of the grounds of appeal either before or at the time of hearing this appeal." 3. The brief facts of the case are that the assessee filed return of income on 04.10.2018 showing gross total income of Rs.39,12,528/- and after setting off of loss the gross total income was Rs.26,53,366/-. The assessee claimed deduction under Chapter VI A. The CPC observed that the assessee did not file its return of income within due date as prescribed under section 139(1) of the Act. The assessee filed appeal before the CIT(A) on 12.08.2020 and Covid period was started. The assessee explained ....

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....he outset of hearing I observed that the appeal is filed belatedly by 162 days before the Tribunal in this regard the assessee has also filed affidavit on 12.01.2023 explaining the reason for filing appeal before the Tribunal which is as under: I, Mr. D N Rama Reddy, s/o MrNarayanappa aged about 71 years, do hereby solemnlyaffirm and state on oath the following: 1. That I am the staff of The Metropolitan Co-operative Housing Society limited who has been working with the team which oversees the accounts departments and Income tax Proceedings. The appellant filed appeals before Hon'ble Income-tax Appellate Tribunal, Bangalore, against the orders passed under section 250 of the Income-tax Act, 1961 for the A.Y 2018-19 and AY 2019-20. 2. For AY 2018-19 the order u/s 250 of Income Tax Act, 1961 was passed on 12.12.2021 and for AY 2019-20 the order u/s 250 of the Act was passed on 10.12.2021. 3. The appeal should have been filed on or before 10.02.2022 and 08.02.2022 for AY 201819 and 2019-20 respectively. 4. However, the time limit for filing the appeal is extended till 28.02.2022 as held by Hon'ble Supreme Court in Cognizance for Ext....

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....n the case of Collector, Land Acquisition Vs. MST. Katiji and Others Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. MST. Katiji and Others (198) 167 ITR 471. 8. The learned AR submitted that the CIT(A) has without considering the explanations filed by the assessee for delay in filing appeal before him he dismissed the appeal of the assessee. The CIT(A) has observed that the appeal filed by the assessee was 410 days which is not correct. The Hon'ble Supreme Court has observed that from 15.03.2020 to 29.05.2022 there was a Covid period in operation therefore the limitation Act shall not apply. The appeal was instituted by the assessee on 12.08.2020 when he came to know that he should have filed appeal before the CIT(A) against the order passed by the CPC for not entertaining claim by the assessee. The learned AR reiterated the submissions made before the CIT(A) vide letter dated 12.08.2020 which is an application for seeking condonation of delay which is as under: The appellant after receipt of notice u/s 143(1) of the Act thought that it was just a mar. notice.The reason for delay is that the appellant was unaware about further course of the action is ....

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....earned DR relied on the following two judgments: i. MajjiSannemma @ Sanyasirao Vs. Reddy Sridevi and Ors.in Civil Appeal No.7696 of 2021 ii. The Puttur Co-operative Town Bank Ltd., Vs. DIT (Intelligence and Criminal Investigation) in ITA No.14 to 22/Bang/2022 11. On merits of the case, the learned DR relied on the judgment of Coordinate Bench of the Tribunal in ITA No.1062/Bang/2022 order dated 03.01.2023 in the case of Syndicate Bank Staff Co-operative Society Ltd., Vs. DCIT, CPC. He also submitted a notification issued by the CBDT for extension of due date for filing return of income from 30.09.2018 to 15.10.2018 vide notification dated 24.09.2018 and it was further extended 31.10.2018 for those assessee's whose requires to submit audit report. He further submitted that books of accounts of the assessee was not audited by the Chartered Accountant. He further submitted that in the income-tax return filed by the assessee he has not given any information about the audit. Therefore, the assessee will not get benefit of extended due date. He was supposed to file return of income upto 31.08.2018. He also refer to section 80AC and submitted that it is mandatory to f....

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....ed 12.08.2020. From the above application, it has been observed that the assessee was in consensus with the income tax proceedings with the Department and it was also aware about the filing the appeal of the assessee and it was waiting the reply from the CPC.. Therefore, he did not intimate to his consultant and later on he contacted with his tax consultants and he advised for filing appeal. Therefore, it can be said that the assessee was vigilant. I therefore consider the facts of the case and in the interest of justice, the delay is condoned. On perusal of the order of the CIT(A) he has not decided the issue on merits of the case. Therefore, considering the facts of the case, the matter is remitted back to the CIT(A) for fresh consideration. The assessee is directed to file cogent matters for substantiating his claim before the CIT(A). Therefore, the appeal of the assessee is allowed for statistical purposes. 13. ITA No.1045/Bang/20222 :The brief facts of the case for the Assessment Year 2019-20 are assessee filed return of income on 26.10.2019 declaring total income of Rs.7,06,840/- after claiming deduction of Rs.18,97,111/- under section 80P(2) of the Act. The intimation was....