Income Tax Appellate Tribunal - Pune
Bharat Forge Ltd,, Pune vs Dy. Director Of Income Tax ,(It)-1,, ... on 17 May, 2019
आयकर अपीलीय अिधकरण "बी" ायपीठ पुणे म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, PUNE
BEFORE SHRI D.KARUNAKARA RAO, AM AND
SHRI VIKAS AWASTHY, JM
आयकर अपील सं. / ITA No. 1817/PUN/2018
िनधारण वष / Assessment Year : 2013-14
Bharat Forge Ltd.,
Mundhwa Pune Cantonment,
Pune-411036.
PAN-AAACB8519L
.......अपीलाथ / Appellant
बनाम / V/s.
Dy.DIT (IT)-1, Pune.
...... यथ / Respondent
Assessee by : Shri Nikhil Pathak
Revenue by : Smt. Nandita Kanchan & Shri Sudhendu Das, DRs
सुनवाई क तारीख / Date of Hearing : 15.05.2019
घोषणा क तारीख / Date of Pronouncement : 17.05.2019
आदेश / ORDER
PER D.KARUNAKARA RAO, AM :
This appeal by the assessee is filed against the order of the Ld. CIT(Appeals)-13, Pune dated 25.09.2018 for the assessment year 2013-14.
2. The CIT(A) dismissing the appeal of the assessee in limine, rejected the request for condonation of the assessee. The CIT(A) did not adjudicate the issues on merits. The condonation request of the assessee is not allowed by not convinced about the reasons cited by the assessee with a delay of 291 days.
2.1. Referring to Ground Nos. 1 & 2, at the outset, Ld. Counsel submitted that the delay was not condoned by the CIT(A), is not in the order and the same is not in the tune of Bombay High Court in the case of Prashant 2 ITA No. 1817/PUN/2018 A.Y.2013-14 Projects Ltd. & others vide ITA No.192/2014 dated 19.07.2016. Ld. Counsel mentioned that on identical facts, the Hon'ble High Court appreciated the reasons given by the assessee and directed the authorities to condone the delay conditionally and admit the appeal for consideration. In this case, on facts, the assessee mistakenly filed the appeal memo before the Assessing Officer instead of filing the same before the CIT(A). The assessee had to file fresh appeals before the CIT(A) as the Assessing Officer refused to transfer the appeal memo to the file of CIT(A). In the process, there was a delay and the said reason of the delay was found sustainable on the reasoning of bonafide mistakes. Ld. Counsel further submitted that this is the instant case the appeal memo was filed before the DCIT(Inter. Taxation) instead of filing before the CIT(A). It was a bonafide mistake. Referring to page 14 of the Paper Book, Ld. Counsel brought to our notice and narrated above reasons and para 2 to 4 of the affidavit. Further, Ld. Counsel brought our attention to page 1 and submitted that the same constitutes covering letter dated 27.03.2015 and the stamp thereon demonstrate the fact of filing the appeal erroneously before the DCIT(Inter. Taxation), Circle-1, Pune. He also brought to our notice at page 13 and submitted that the appeal fee was already paid before due date. On the other hand, Ld.DR for the Revenue relied on the order of CIT(A).
3. We have heard rival submissions on the preliminary issue of condonation issues and perused the material available on record. The issue of condonation of delay and the reasons thereon and for the sake of completeness, the said para 2 to 4 of the affidavit are extracted as under:-
2. " The order u/s 201 was passed in the case of Bharat Forge Ltd.
on 24th February 2015 and was served on our company on 27th February 2015. The company prepared appeal contesting the said 3 ITA No. 1817/PUN/2018 A.Y.2013-14 order along with the necessary forms and supporting. The relevant appeal fee was paid on 27th March 2015.
3. The entire appeal set was duly prepared by our company and an employee of the company was entrusted with the task of filing the relevant appeal sets on 27th march 2015. The said employee of the Company has inadvertently filed the appeal sets with office of the DCIT, International taxation, Circle-1, Pune on 27th march 2015. He handed over the appeal acknowledgement to me. However, I did not notice the inadvertent error committed by him of filing the appeal before DCIT, International taxation-Circle-1, Pune. Further, I stated that the office of DCIT, International taxation, Circle-1, Pune did not return to us the appeal papers wrongly filed nor did it forward the appeal papers to the office of the concerned CIT Appeals.
4. I hereby affirm that this inadvertent error was noticed by our tax consultant on 28th September, 2017 while reviewing list of pending appeals. The tax consultant of the company realized that the appeal was not filed with appropriate authority and informed me about the above error. Therefore, immediately, on being informed, we have initiated the process to file fresh appeal before CIT(A)-13, Pune. I hereby affirm that the mistake in filing the appeal before wrong authority was not noticed by me and therefore, there is a delay in filing the appeal."
4. We also examined the facts of filing of appeal before the DCIT(Int. Taxation) on 27.30.2015 and noticed that the assessee is sincere in making payment of appeal fee demonstrating the intention to file the appeal in time. Considering all these facts and circumstances of the case, we find the case is more or less close to the facts of the cited case of Bombay High 4 ITA No. 1817/PUN/2018 A.Y.2013-14 Court in the case of Prashant Projects Ltd.(supra). Para 6 of the said judgement appreciates the fact that the assessee intends to file the appeal in time however, the mistake committed by the assessee so dear that resulted in substantial delay in filing of the appeal. Considering the facts, the Hon'ble High Court of Bombay condone the delay and directed the assessee to pay cost of Rs.10,000/- before remitting the issues to the filing of the appeal for adjudication of issues in accordance with law. Para 6 of the said order is reproduced hereunder:-
6. "However, the appellant should have taken care to ensure that the appeal is correctly filed with the office of the CIT(A). Although, we are satisfied that there was a mistake / error on the part of appellant in filing it with the wrong office, the appellant has not been able to explain the delay between 23rd March, 2010 to 12th May, 2011 i.e. the period when it addressed a communication to the CIT(A) for hearing of its appeal till the date it requested the Assessing Officer to transfer the appeal to CIT(A). The explanation stated across the bar is that it was pursuing its appeal but no particulars are given.
Therefore, although we set aside orders dated 4th September, 2013 of the Tribunal and 4th August, 2011 of the CIT(A) and restore the appeal to the file of the CIT(A) for fresh disposal in accordance with law, it is subject to the appellant paying all tax dues payable for the subject Assessment Year, if not already paid and additionally on payment of costs of Rs.10,000/ by a pay order drawn in the name of "The Principal Commissioner of Income Tax-15, Mumbai"
within a period of four weeks from today."
5. Considering the above broad based parity of facts and reasoning, we are of the opinion, with similar directions, the delay should be condoned. The matter should be restored to the file of CIT(A) for disposal on merits 5 ITA No. 1817/PUN/2018 A.Y.2013-14 and the assessee should be required to make payment towards cost payment of Rs.10,000/- and the said amount should be paid as directed by the Hon'ble High Court in the said case. Accordingly, the preliminary issue raised by the assessee is allowed conditionally.
6. Coming to the merits of the issue, we find that the matter should be restored to the file of the CIT(A) would admit the appeal and adjudicate the issue on merits by passing a speaking order in accordance with the provision of section 250(6) of the Income Tax Act, 1961 (in short "Act") after granted reasonable opportunity of being heard to the assessee. Thus, grounds raised by the assessee are allowed as above.
7. In the result, appeal of the assessee is allowed.
Order pronounced on 17th day of May, 2019.
Sd/- Sd/- Sd/-
Sd/-
(VIKAS AWASTHY) (D.KARUNAKARA RAO)
याियक सद य/JUDICIAL MEMBER लेखा सद य/ACCOUNTANT MEMBER
दनांक / Dated : 17th May, 2019.
Amit Kumar
आदेश क ितिलिप अ िे षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant-Bharat Forge Ltd., Mundhwa Pune Cantonment, Pune-411036.
2. थ / The Respondent-Dy.DIT (IT)-1, Pune.
3. The CIT(Appeals), Pune.
4. The CCIT, Pune.
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण,पुणे / DR, ITAT, Pune.
6. गाड फ़ाइल / Guard File.
आदेशानुसार / BY ORDER, //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.