PER G. MANJUNATHA, AM:
This appeal filed by the assessee is directed against order passed by the learned Commissioner of Income Tax (Appeals)- 9, Chennai, dated 24.05.2019 and pertains to assessment year 2014-15.
2. The assessee has raised following grounds of appeal:-
"1. For that the order of Commissioner of Income Tax (Appeals) is contrary to law, facts and circumstances of the case to the extent prejudicial to the interest of the appellant and at any rate is opposed to the principles of equity, natural justice and fair play.
2. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the order of the Assessing Officer is without jurisdiction.
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3. For that the Commissioner of Income Tax (Appeals) without affording an opportunity of being heard erred in dismissing the appeal as time barred.
4. For that the appeal was filed belatedly by 7 days and that the appellant had reasonable cause for the delay in filing the appeal before the Commissioner of Income Tax (Appeals).
5. For that the Commissioner of Income Tax (Appeals) failed to appreciate that the appellant could have derived no benefit by filing the appeal belatedly and that the same could not have been the intent of the appellant.
Disallowance u/s.36(1 )(va)
6. For that the disallowance of employees' contribution to PF &ESI amounting to Rs.7,66,177/-u/s.36(1)(va)for the reason that the payments to the relevant fund were not made within the due date of the relevant statute is not warranted in the facts and circumstances of the case.
7. For that the payment of employees' contribution to PF & ESI within the due date for filing the return of income is an allowable expenditure.
Disallowance u/s.43B
8. For that the disallowance of Service Tax and VAT amounting to Rs.21,87,484/- u/s.43B for the reason that the payment were not made to the Government Account is not warranted in the facts and circumstances of the case.
9. For that the Service Tax and VAT amounts were not debited as expenditure in the Profit & Loss account during the impugned assessment year.
10. For that the Reversal of VAT amounting to Rs.2,22,790/- u/s.43B for the reason that the amount was not paid before filing of return of income is not warranted in the facts and circumstances of the case. 11.For that the provisions of section 43B are not invocable in the facts and circumstances of the case."
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3. At the outset, we find that the appeal filed by the assessee is time barred by 1070 days, for which, a petition for condonation of delay in filing of the appeal along with Affidavit explaining the reasons for delay, has been filed by the assessee. The Ld.AR for the assessee referring to petition filed by the assessee submitted that, the order of the Commissioner of Income Tax (Appeals)- 9, Chennai dated 24.05.2019 was not received by the assessee and only while filing appeal on 24.03.2022 before the Commissioner of Income Tax (Appeals) against the order passed under 143(3) r.w.s.147 for the assessment year 2014-15 in the e-filing portal, the assessee came to know that the order of the Commissioner of Income Tax (Appeals) on the appeal against the assessment order u/s. 143(3) was passed on 24.05.2019. Further, the learned AR submitted that from 24.03.2022 which is the date on which the passing of the order was first known to the assessee, the delay was only 35 days. The assessee did not receive the order of Commissioner of Income Tax (Appeals). The copy of the order of the Commissioner of Income Tax (Appeals) uploaded in the e-filing portal was not properly readable. Since, the assessee did not receive a copy of the order of the Commissioner of Income Tax (Appeals) physically, the
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assessee approached the office of the Commissioner of Income Tax (Appeals) to get a clear copy of the order. After several visits, the assessee was informed that since the appeal before the first appellate authority has become faceless, the office of Commissioner of Income Tax (Appeals) who passed the impugned order, is not operating presently and hence a clear copy I true copy of the order was not issued. Thereafter, the assessee approached Shri.T.Banusekar, Chartered
Accountant for further course of action. Shri.T.Banusekar, Chartered Accountant on going through the order of the Commissioner of Income Tax (Appeals) had informed the assessee that an appeal can be filed before the Hon'ble Income Tax Appellate Tribunal along with a petition to condone the delay as the statutory lime limit for filing the appeal has elapsed. This leads to a huge delay in filing of the appeal. However, such delay is neither intentional nor to derive any undue benefit, but purely on wrong professional advice and also ignorance of law. Therefore, the delay in filing of the appeal may be condoned and the appeal may be admitted for hearing. In this regard, he relied upon the decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co.
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Ltd. v. State of Uttar Pradesh & Ors. reported in [1979] 118 ITR
0326.
4. The learned DR for the Revenue, on the other hand, strongly opposing the petition filed by the assessee for condonation of delay submitted that the reasons given by the assessee do not come within the ambit of reasonable and bonafide reasons, which can be considered for condonation of delay and hence, appeal filed by the assessee may be dismissed as not maintainable.
5. We have heard both the parties and considered the petition filed by the assessee for condonation of delay of 1070 days. We have also carefully considered reasons given by the assessee for delay in filing of the appeal. We find that prima facie the reasons given by the assessee, in the affidavit for condonation of delay of 1070 days, seems to be not bona fide. We have gone through the affidavit filed by the assessee and also examined sequence of events and after considering necessary facts, we are of the considered view that the reasons given by the assessee in affidavit is not bona fide. Therefore, we are of the considered view that there is no merit in the
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reasons given by the assessee in the petition for condonation of delay in filing of the appeal.
6. Be that as it may. Coming back to the legal position evolved by the decision of various High Courts, including the Hon'ble Supreme Court in number of cases, where it has been, time and again, held that when merits and technicalities pitted against each other, then merit alone deserves to be prevailed, because, if you throw out a meritorious case out of judicial scrutiny on the grounds of technicalities, then you may deprive the right of the petitioner in pursuing their case. At the same time, various Courts have held that rules of limitation are not meant to destroy the rights of parties, they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly, within the time bound prescribed under the Act. Further, in a case, where, for the reasons beyond the control of the petitioner, the appeal could not be filed, then the Courts are well equipped with power to condone the delay, if the petitioner explains the delay in filing of the appeal with a reasonable cause. However, there is no law or mandate in the Act, to condone the delay in each and every case. But, it depends upon all facts of each case and the reasons given by
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the parties for condonation of delay. Therefore, one has to go by the facts of its own case and the reasons given by the petitioner for condonation of delay. In this case, on perusal of reasons given by the assessee for delay in filing of the appeal, we find that although it appears, the assessee is not deriving any benefit by not filing the appeal within the due date prescribed under the Act, but, from contents of petition filed by the assessee, we could easily make out a case that the assessee has made an afterthought to file the appeal against the order of the CIT(A). Therefore, in our considered view, for these vague reasons, such huge delay of 1070 days in filing of the appeal, cannot be condoned.
7. In so far as the arguments of the learned Counsel for the assessee, in light of decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh &Ors.(supra) that ignorance of law is also an excuse, but if you examine the facts of the present case, we are of the considered view that the assessee is not ignorant of law, because, the assessee was well aware of the Income Tax proceedings and further, hired professional Chartered Accountant, for representing its case. Thus, we are of the
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considered view that the case laws relied upon by the assessee, are not applicable to the facts of the present case.
8. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that the assessee has failed to make out a prima facie case for condonation of delay of 1070 days in filing of the appeal before the Tribunal. Further, the reasons given by the assessee in the affidavit does not come under reasonable cause as prescribed under the Act, for condonation of delay. Hence, we reject the petition filed by the assessee for condonation of delay and dismiss the appeal filed by the assessee.
9. In the result, the appeal filed by the assessee is dismissed as not maintainable.
Order pronounced in the open court on 29thJuly, 2022 Sd/- Sd/-
(महावीर सहं) (जी. मंजुनाथ)
(Mahavir Singh) (G. Manjunatha )
उपा य / Vice-President लेखा सद!य / Accountant Member चे#नई/Chennai,
$दनाकं/Dated 29thJuly, 2022
DS
आदेश क (त)ल*प अ+े*षत/Copy to:
Appellant 2. Respondent 3. आयकर आयु,त (अपील)/CIT(A)
4. आयकर आयु,त/CIT 5. *वभागीय (त(न0ध/DR 6. गाड 3 फाईल/GF.