TMI Blog2024 (4) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... who ought to have remained vigilant about their income tax matter was held by the ITAT. The expression sufficient cause will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as the appellant/ assessee in the present case is acting in defiance of law, therefore there can be no reason to allow its application and condone the substantial delay of 690 days involved in preferring of the captioned appeal. Hon'ble Supreme Court in Ramlal, Motilal and Chotelal v. Rewa Coalfields Ltd. [ 1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeal the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring of the captioned appeal, the ITAT declined to condone the delay of 690 days, without adverting to the merits of the case and hence dismissed the captioned appeal of the assessee as barred by limitation. As far as the issue involved pertaining to claiming of deduction under section 36 (1) (va) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of delay. 4. Mr. Manoj Kumar Sinha, learned counsel for the appellant submits that the appellant filed return of Income on 31.10.2019 declaring total income at Rs.14,66,150/- after claiming PF and ESIC deduction of Rs.19,84,415/- under Section 36(1) (va) of the Act. While processing the return under Section143(1)(a) of the Act the claim was disallowed. The first appeal filed under section 246A was dismissed on the grounds of non-compliance and it appears that the notices under Section 250 of the Act and the order of learned CIT(A) were uploaded on appellant's ITBA e-filing portal and he came to know about this only on 08.10.2023 while randomly checking the portal. The second appeal before learned ITAT was filed on 17.10.2023 along with application for condonation of delay of 690 days along with affidavit. The learned ITAT has dismissed the appeal on grounds of delay without considering the fact that the notices and order under Section 250 of the Act were not served upon the appellant as required under Rule 46 of Income Tax Rules, 1962 but were merely uploaded on his e-filing portal /emailed without any real time alert. The scheme of filing and disposal of appeals under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is advisable for the Department to serve notice on such assessee through other mode of communications prescribed when they failed to respond to the summons, orders, notices and other communications through e-mail. There has to be some amount of flexibility. Rigidity in administration of tax in such matters may not serve the purpose and can be counter productive. Mr. Sinha further relies on the decision of the Supreme Court in Collector, Land Acquisition v. Mst. Katiji Others, {(1987) 167 ITR 471}, Sandhya Rani Sarkar v. Sudha Rani Debi {1978 AIR 537}, Senior Bhosale Estate (HUF) v. The Assistant Commissioner of Income Tax {(2019) 419 ITR 732 SC}, decision of the Karnataka High Court in Karnataka Forest Development Corpn. Ltd. v. Assistant Commissioner of Income Tax (TDS) Circle 11(3), Bangalore {2010 (8) TMI 1134} and the decision rendered by the ITAT in The Deputy Commissioner of Income Tax, Circle -4(1) Raipur v. M/s. Chhattisgarh State Electricity Board (Through Chhattisgarh State Power Holding Company Ltd.). 8. On the other hand, Ms. Naushina Afrin Ali, learned counsel for the respondent/Revenue submits that the order passed by the learned ITAT is just and proper warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) on 29.09.2021, to the notice of his chartered account, viz. Shri Ajay Agrawal that he was informed that the appeal of the assessee firm had been dismissed by the CIT(Appeals) Raipur. The Ld. AR further submitted that as the order of the CIT(Appeals) was dropped in the email account, viz., bpsahu_1974@redifmail.com i.e. email account that was generated by his accountant Shri Amitabh Paul and the partners of the assessee firm had no access to the same, thus, it was for the said bonafide reason that they had remained unaware about the order passed by the CIT/Appeals) dated 29.09.2021 .. 11. The reason that the delay in filing of the present appeal can by no means be held to be justified for the reason that partners of the assessee firm had remained unaware about the order passed by the CIT (A) dated 29.09.2021 which was dropped in the e-mail account of his accountant, viz. Shri Amitabh Paul. As the reason given by the assessee firm regarding the inordinate delay involved in filing of the present appeal does not inspire any confidence, and in fact reveals a lackadaisical conduct of the partners of the assessee firm, therefore, the same cannot be summarily accepted on the very f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 137 (Bombay High Court).; Commissioner of Income-Tax, Udaipur v. Udaipur Dugdh Utpadak Sahakari Sandh Ltd. [2013] 35 taxmann.com 616 (Rajasthan High Court) and Nipso Polyfabriks (supra) would reveal that in all these cases, the High Courts principally relied upon omission of second proviso to Section 43B (b). No doubt, many of these decisions also dealt with Section 36(va) with its explanation. However, the primary consideration in all the judgments, cited by the assessee, was that they adopted the approach indicated in the ruling in Alom Extrusions. As noticed previously, Alom Extrutions did not consider the fact of the introduction of Section 2(24)(x) or in fact the other provisions of the Act. 52. When Parliament introduced Section 43B, what was on the statute book, was only employer s contribution (Section 34(1)(iv)). At that point in time, there was no question of employee s contribution being considered as part of the employer s earning. On the application of the original principles of law it could have been treated only as receipts not amounting to income. When Parliament introduced the amendments in 1988-89, inserting Section 36(1)(va) and simultaneously inserting the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amounts received by it or deducted by it (Section 36(1)(va)) is, thus crucial. The former forms part of the employers income, and the later retains its character as an income (albeit deemed), by virtue of Section 2(24)(x) - unless the conditions spelt by Explanation to Section 36(1)(va) are satisfied i.e., depositing such amount received or deducted from the employee on or before the due date. In other words, there is a marked distinction between the nature and character of the two amounts the employer s liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees income and held in trust by the employer. This marked distinction has to be borne while interpreting the obligation of every assessee under Section 43B. 54. In the opinion of this Court, the reasoning in the impugned judgment that the non-obstante clause would not in any manner dilute or override the employer s obligation to deposit the amounts retained by it or deducted by it from the employee s income, unless the condition that it is deposited on or before the due date, is correct and justified. The non-obstante clause has to be understoo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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