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TMI Blog2024 (5) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice, that being the life-purpose of the existence of the institution of Courts. In the instant case, the Revenue does not plead that there was malafide intention on the part of the assessee in preferring the appeal with a delay. The assessee does not stand to gain by preferring appeal with a delay. When technicalities are pitted against substantial justice, the former must give way to the latter. There is no reason not to accept the explanation offered by the assessee that it is only due to bonafide mistake that the appeal has not been preferred against the intimation issued against section 143(1) of the Act at the first instance. Revenue has not pleaded any rights to have been crystalized due to efflux of time. By condoning the delay, the highest that could happen is that a cause could be decided on merits which would go in the interest of justice. In view of this matter, we are of the opinion that delay in preferring the appeal before the CIT(A) is to be condoned. Appeal of the assessee is allowed for statistical purposes. - Shri George George K, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Order (DAO) was passed on 30.09.2021, wherein the adjustment made u/s 143(1) of the Act was not incorporated. In the draft assessment order, the A.O. had incorporated the T.P. adjustment proposed by the Transfer Pricing Officer (TPO) and disallowance u/s 40(a)(ia) of the Act. 5. The assessee, being aggrieved by the DAO, filed objections before the Dispute Resolution Panel (DRP). The DRP vide its directions dated 16.06.2022 disposed of the assessee's objections. Pursuant to the DRP's directions, Final Assessment Order (FAO) was passed, accepting the returned income. Therefore, the TP adjustment and the disallowance under section 40(a)(ia) of the Act, was deleted. Though the TP adjustment and the disallowance under section 40(a)(ia) of the Act was deleted in the FAO, assessee preferred appeal before the ITAT in ITA No.912/Bang/2022 against the FAO raising contentions against the adjustment made under section 143(1) of the Act. The argument of the learned AR during the hearing before ITAT in ITA No.912/Bang/2022 was that the computation sheet attached to the final assessment order, the AO has taken into account not the returned income but the total income computed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the final assessment order by the A.O., by taking figures from intimation u/s 143(1) of the I.T.Act, has indirectly upheld addition of Rs. 6,16,54,359, which is not correct. However, needles to state that demand raised u/s 143(1) of the I.T.Act will have to be sustained unless and until the assessee challenges the same. Therefore, we allow ground 2 raised by the assessee. 6. Pursuant to the order of the Tribunal dated 03.11.2022, assessee filed appeal before the CIT(A) as against the intimation passed under section 143(1) of the Act (appeal before the CIT(A) against section 143(1) of the Act was instituted on 12.12.2022). Before the CIT(A), assessee had also filed a petition for condonation of delay. Assessee had stated before the CIT(A) that although the additions were made under section 43B of the Act in an intimation under section 143(1) of the Act, it was of bonafide view that the proposed addition under section 43B of the Act would be taken up for discussion during the scrutiny assessment proceedings. However, the AO in the scrutiny assessment proceedings did not issue any notice or discussed the proposed adjustment that was made in the intimation issued under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(1) of the Act where the same was not discussed in the DAO or the FAO is incorrect as same has indirectly upheld the addition of Rs. 6,16,54,359/-. It is in this factual background the assessee had filed appeal before the CIT(A) with a petition to condone the delay in filing the appeal by 1351 days. 10. Admittedly, the assessee has filed appeal before the CIT(A) within a reasonable time from the date of the ITAT Order dated 03.11.2022. The only question now is to explain the delay in filing the appeal before the CIT(A) from the date of intimation issued under section 143(1) of the Act, up to the date of the FAO (since the assessee has already preferred appeal as against the FAO before ITAT) which was dismissed vide ITAT Order dated 03.11.2022). As mentioned earlier, assessee was under bonafide belief that the addition under section 43B of the Act made in the intimation under section 143(1) of the Act, would be discussed / mentioned in the scrutiny assessment since notice under section 143(2) of the Act was already issued on 05.09.2018 i.e., prior to the date of intimation (the date of intimation is 01.03.2019). 11. The Hon ble Supreme Court in the case of Collector, Lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislatively fixed period of time. 14. In the instant case, the Revenue does not plead that there was malafide intention on the part of the assessee in preferring the appeal with a delay. The assessee does not stand to gain by preferring appeal with a delay. When technicalities are pitted against substantial justice, the former must give way to the latter. There is no reason not to accept the explanation offered by the assessee that it is only due to bonafide mistake that the appeal has not been preferred against the intimation issued against section 143(1) of the Act at the first instance. The Revenue has not pleaded any rights to have been crystalized due to efflux of time. By condoning the delay, the highest that could happen is that a cause could be decided on merits which would go in the interest of justice. In view of this matter, we are of the opinion that delay in preferring the appeal before the CIT(A) is to be condoned. Since we have condoned the delay in filing the appeal before the CIT(A), the issue on merits needs to be adjudicated by the CIT(A). For the aforesaid purpose, the matter is remanded to the CIT(A) to take a decision on merits in accordance with law. It is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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