Income Tax Appellate Tribunal - Kolkata
Sudha Dhoot, Kolkata vs Ao Ward 40 (4), Kolkata on 3 July, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH KOLKATA
BEFORE SHRI SONJOY SARMA, JUDICIAL MEMBER
AND SHRI RAKESH MISHRA, ACCOUNTANT MEMBER
ITA No.127/KOL/2024
Assessment Year: 2018-19
Sudha Dhoot AO, Ward-40(4), Kolkata.
29B, Rabindra Sarani, 3 rd
Vs
Floor, Room No. 10E, West
Bengal-700001.
(PAN: ADWPD2538F)
(Appellant) (Respondent)
Present for:
Appellant by : Shri Ram Avtar Dhoot, CA
Respondent by : Smt Ranu Biswas, Addl. CIT, DR
Date of Hearing : 25.06.2024
Date of Pronouncement : 03.07.2024
ORDER
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Ld. Addl./JCIT(A)-12, Mumbai [hereinafter referred to as "the Ld. CIT(A)"] passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for AY 2018-19 dated 16.10.2023 passed against the intimation u/s. 143(1) of the Income-tax Act, 1961 (hereinafter referred to as the "Act") by the DCIT, CPC, Bangalore (hereinafter referred to as the "AO") dated 06.11.2017.
2. Appeal of the assessee is barred by limitation by 29 days. The assessee has filed an application for condonation of delay u/s. 250 of the Act in filing of Form No. 36. However, the same is addressed to the ITO, Ward-40(4)3 Gov. Kolkata and is reproduced as under:
2 ITA No. 127/Kol/2024Sudha Dhoot, AY: 2018-19 2.1. It was observed during the course of the appeal that the appeal suffers from several defects so much so that even the Power of Attorney 3 ITA No. 127/Kol/2024 Sudha Dhoot, AY: 2018-19 was not enclosed. The assessee has also filed an application along with Memo of Appeal in Form No. 36 along with an affidavit which is reproduced as under:
"I SUDHA DHOOT W/O of Ram Awatar Dhoot residing at Shree Shyam Garden 12, Haridutt Rai Chamaria Road 3rd Floor Howrah (North) West Bengal India, do here by solemnly affirm and declare as under:
Condonation of Delay under section 250 of the income Tax Act 1961 in filing of Form No. 36 for Assessment Year 2018-19.
1. In exercise of the powers conferred under section 250 of the Income Tax Act, 1961 (hereinafter referred to as act) the central Board of Direct taxes (CBDT) authorized the commissioners of Income Tax to admit application of condonation of delay in filing From No. 36 for AY.
2. Further to the power delegated to commissioner of Income Tax discussed above the CBDT here by directs that where there is delay of beyond 60 days in filling Form No. 36 for Assessment year. 2018-19 of for any subsequent Assessment year. The Pr. chief commissioner and applications of condonation of delay under section 250 of the Act, and decide on merits.
3. Firstly, there was a mistake in challan of Rs. 10000/- it was paid under
400. ITAT said it need to be paid in code 300. So we had to change entire set ITAT paper Book. Again there was mistake in uploading Form No. 36. So Rectification took some time. Hence kindly condone the delay of 60 days and oblige.
4. That in this respect your petitioner would like to cite the judgement of Supreme Court of India passed in the matter M/s Collector of Anantnag -VS- Master Kataji & Ors (STC 66, dated 01/08/1987, page 242 (S.C) wherein it has been held that each day's delay need not be explained and further the procedural law should not defeat the substantive justice deserved by the Appellant.
5. That under the facts and in the circumstances of the case, and considering the judgement cited above it is most humble requested that the delay in submission of the relevant appeal petition may be condoned and the relevant appeal petition may be directed to be heard on merits.
6. The Bombay High Court in India has condoned a 838-day delay in filing an appeal by an accused person against an NIA Court order. The Court held that Appellate Court have the language of the Act. The judge stated that access to justice is a fundamental right and that the word "shall" in the proviso should be read as may. They also criticized that contradictory stand taken by the NIA in different High Court.
MUMBAI: Observing that access to justice is part and parcel of right to life in India and in all civilised societies the Bombay High Court on Thursday Condoned 838 day's delay in filing of appeal by an accused against an national Investigation Agency (NIA) court order refusing him bail.4 ITA No. 127/Kol/2024
Sudha Dhoot, AY: 2018-19 Justice Revati Mohite-Dere and Gauri Godse held that appellate court have power to condone delay beyond 90 days despite the language of second proviso to section 21 (1) (appeal from special court to HC) of NIA Act that no appeal shall be entertained after expiry of 90 days. Thus, an application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order passed by a special court is maintainable on sufficient cause being shown ... the word shall in the second proviso be read down to read as may and hence directory in nature," they added. The judges said, "if the proviso were to be held mandatory despite sufficient cause being shown by the accused the doors of justice will be shut leading to travesty of justice which cannot be permitted by courts of law."
The verdict came on the accused Faizal Mirza's plea to condone delay in filing appeal. He was booked under unlawful Activities (Prevention) Act. His bail was rejected on March 9,2020. His advocate Mateen shaikh said due to Covid - 19 pandemic, he could not file the appeal.
Article 14 of the Indian Constitution provides that, "The State shall not deny to any person equality before the law and the equal protection of the laws within the territory of India". This implies a right in every individual within the territory of India, and a duty on State to ensure that legal protection is accessible to all irrespective of social or economic constraints. To quote Martin Luther King "Injustice anywhere is a threat to justice everywhere". Access to justice is a basic right that guarantees protection of law to all. It is integral to rule of law. No one is above the law, not even the State. Everyone should be able to seek protection of the laws and legal redress for their grievances.
Verification Verified that the contents of my above affidavit are true and best of my knowledge and belief nothing concealed therein.
Verified at Kolkata 12th June, 2024."
2.2. Although the appeal is liable to be dismissed on account of delay, however, in the interest of justice, the delay in filing the appeal is being condoned as the assessee seemed to have erred in following the procedure as per the letter dated 07.02.2024.
3. The assessee has raised the following grounds of appeal:
"1. That the Ld. Assessing Officer has disallowed the amount of Brought Forward losses amounting to Rs.43,97,351/- mentioning that the return of 2017 was uploaded after due date but it was not uploaded after due date. The due date for filing Return of audited account is 31.10.2017 and we have filed the return within due date, i.e. on 05.08.2017. Addition by the Ld. AO proved that there was no tangible material to believe and neither there was not any application of mind and without any basis and ground.
2. That the Appellant craves leave to add, alter, adduce or amend any grounds of appeal or before or in course of hearing."5 ITA No. 127/Kol/2024
Sudha Dhoot, AY: 2018-19
4. Brief facts of the case are that the assessee had filed the return of income showing total income on 30.07.2018 of Rs.2,10,595/- based on audite d accounts. The said return was proce ssed u/s. 143(1) of the Act without any variation of income. However, the claim for brought forward losses amounting to Rs.4,29,735/- of the last year was not allowed. It was claimed that the due date of filing the return of income was 31.10.2017 and the assessee filed the return within the due date i.e. 06.08.2017. The Ld. CIT(A) raised certain query and dismissed the appeal by holding as under:
"3.2. Fro m the ab ove, it is clear th a t the CPC had d is allo wed brought f or ward losses amo unting to Rs.43,97.351/- s tating that the appe llant did n o t f ile the re turn of AY 2017 -18 (pre v ious year to AY 2018-19) with in the due d ate.
3.3. In order to verif y the f ac t whe the r the appe llan t had f iled the re turn of AY 2017 -18 with in due date, a reques t was sent to the appe llan t on 06.10 .2023 with request to s ub mit docume ntary proof whe the r the audit repor t (TAR) f or both the assess me nt years, i.e., AY 2017-18 & 2 01 8-19 were submitte d along with the retu rn within due date f or the relevan t ye ars.
3.4. The appe llan t in reply v ide submissio n d ated 11.1 0.2023 has state d that the IT R f or A.Y. 2018-19 was uplo aded with in due da te, i.e. on 3 0.07.2018 . The appellant h as s ta ted th at TAR was not app licable to her in AY 2018- 19.
3.5. Ho wever, the appe llan t has c hosen to re main s ilen t on whe ther the IT R and the TAR f or AY 2017-18 was uplo aded with in due date. She has also not s ubmitted any tangible ma te r ial to pro ve whe ther the IT R and TAR f or AY 2017- 18 was uploaded with in due date.
3.6. As per records the appellant has f iled IT R f or AY 2017-18 on 26.10.2017 wh ile the due date f or f iling ITR was 05.08.2 017.
3.7. In this regar d, the pre ss release dated 31. 07.2 017 o CBDT regard ing ex tens io n of date of f iling inco me- tax re turns was pe rused. T he press release has s tipulated tha t the re turn f or AY 2017-18 cou ld be f iled up to 05.08.2017.
3.8. The appe llan t has clear ly f iled th e ITR late:
3.9. Any loss c an be carr ied f orward o nly if the re turn of inco me /loss of the year in wh ic h loss is in curred is f urnished on or bef ore the due date of f urnish ing the return as pres cr ibed u/s 139(1).6 ITA No. 127/Kol/2024
Sudha Dhoot, AY: 2018-19 3.10. Fur ther, in the case of Checkmate Se rv ices Pr iv ate L imite d, the Hon'b le Supreme Cour t of Ind ia had held tha t-
One of the ru les of in ter pretation of a tax s tatu te is that if a deduc tion or e xemp tion is available on co mpliance with cer ta in conditio ns, the conditions are to be s tr ic tly co mplied with. T his rule is in line with the general pr incip le tha t tax ing s tatu tes are to be constr ued str ic tly, and that there is no roo m f or equitable cons idera tions.
T hat dedu c tions ar e to be granted on ly whe n the condit ions whic h govern the m are str ic tly co mpl ie d with.
3.11. Theref ore, as the appe llan t had no t co mp lied with s tatu tory requ ire me nt of f iling the ITR of AY 2017-18 within d ue date, she has los t the oppor tunity to c arry f or ward the losses and thus, the CPC had r igh tly de nied her the c arry f or war d of losses f or the AY 2018-19.
3.12. T heref ore, no interf erence is needed in the o rder of the CPC. In v ie w of this, Ground Nos. 1 & 2 are dismissed.
4. In the resu lt appeal of the appe llan t is d is missed."
5. During the course of the appeal, the Ld. AR argued that the details for AY 2017-18 were never called for and, there fore, they we re not filed. His kind attention was drawn to paras 3.2, 3.3 and 3.4 of the order of the Ld. CIT(A) in which it is stated that the details we re called for but the details for AY 2017-18 were not filed. The assessee claims that the due date for AY 2017-18 was extended vide CBDT Circular and, therefore , the return for AY 2017-18 was file d in time and the claim for brought forward losses ought to have been allowed as the assessee had done trading of commodities and the accounts were liable to be subjected to audit.
6. We have examined the matter. Incidentally, the issue pertains to the AY 2017-18 when the loss was to be determined to be carrie d forward and as the return for AY 2017-18 was not filed in time as per the CPC, therefore, as per 7 ITA No. 127/Kol/2024 Sudha Dhoot, AY: 2018-19 the provisions of section 80, the claim for carry forward and set off of carried forward loss was not allowed. Now, the assessee claims that the return was filed within time and the Tax Audit Report was also filed in the course of the appeal before us. However, the Ld. AR was advised to file the application under rule 29 of the IT(AT) Rules, 1963 so that the additional e vidence could be admitted. It is reiterated that the appeal relates to the AY 2018-19 while the claim of loss was to be dete rmine d in AY 2017-18 and in case the assessee was aggrieved with the intimation issued for the AY 2017-18, the proper course of action was to file an appeal against the intimation u/s. 143(1) issued for AY 2017-18. For AY 2018-19, only the loss which has been determined in earlier years can be allowed to be set off and in case the same has not bee n determined in accordance with the law, the remedy available to the assessee is either to file an appeal for AY 2017-18 or move an application for rectification u/s. 154 before the AO and once the loss is determined to be carried forward, the request for adjustment of the said loss against the income of the assessee can be entertained. The tax audit report which was neither filed before the AO nor before the Ld. CIT(A) being an additional piece of document, ought to have been filed before the Ld. CIT(A). Since in the order of the Ld. CIT(A) there is no error as the loss has not been set off because it was not de termined in the AY 2017-18, therefore, the appeal is liable to be dismissed. However, the assessee may file the tax audit re port being filed now before the AO for rectification of the intimation u/s. 143(1) and if the assessee is not satisfied with the same, he has the option of filing the appeal before the Ld. CIT(A) u/s. 250 of the Act. On the facts as narrated in the 8 ITA No. 127/Kol/2024 Sudha Dhoot, AY: 2018-19 preceding paragraphs, the appeal for the AY 2018-19 is not maintainable and is hereby dismissed.
7. In the result, the appeal of the assessee is dismissed.
Order pronounce d in the open court on 3 r d July, 2024.
Sd/- Sd/-
(Sonjoy Sarma) (Rakesh Mishra)
Judicial Member Accountant Member
Dated: 3 r d July, 2024
JD, Sr. P.S.
Copy to:
1. The Appellant:
2. The Respondent.
3. CIT(A)-
4. The CIT,
5. DR, ITAT, Kolkata Bench, Kolkata
//True Copy// By Order
Assistant Registrar
ITAT, Kolkata Benches, Kolkata