Shri Sucha Singh Langah, Mohali V. Pr. CIT-2, Chandigarh

ITA 1005/CHANDI/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0141 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 26-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Period of limitation; Time period of passing order; Set aside
• Section: 263; 143(3)

Judgement Text

आयकर य कर , य य “ब ”, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘B, CHANDIGARH BEFORE: SHRI SUDHANSHU SRIIVASTAVA, JUDICIAL MEMBER AND SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER ITA No. 1004/Chd/2018 (Assessment Year: 2010-11 Sucha Singh Langah, H.No.543, Phase VI, Mohali Presently at Vill. & PO Langah, Distt Gurdaspur, Punjab. Deputy Comm. of Income Tax, Circle 6(1), Mohali. थायी लेखा सं./PAN NO: AANPL0443K ITA No. 1021/Chd/2018 (Assessment Year: 2012-13 Sucha Singh Langah, H.No.543, Phase VI, Mohali Presently at Vill. & PO Langah, Distt Gurdaspur, Punjab. Pr. Commissioner of Income Tax-2, Chandigarh. थायी लेखा सं./PAN NO: AANPL0443K & ITA No. 1005/Chd/2018 (Assessment Year: 2011-12 Sucha Singh Langah, H.No.543, Phase VI, Mohali Presently at Vill. & PO Langah, Distt Gurdaspur, Punjab. Pr. Commissioner of Income Tax-2, Chandigarh. थायी लेखा सं./PAN NO: AANPL0443K नधा रती क ओर से/Assessee by: Shri Parikshit Aggarwal, CA राज व क ओर से/ Revenue by : Shri Ashok Khanna, Addl. CIT ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 2 स ु नवाई क तार ख/Date of Hearing: 07.12.2021 उदघोषणा क तार ख/Date of Pronouncement: 17.01.2022 2022 (Hearing through Webex) आदेश/ORDER Per Vikram Singh Yadav, Accountant Member: These are three appeals filed by the assessee against the separate orders of Learned Commissioner of Income Tax (Appeals)-2, Gurgaon [in short the ‘Ld.CIT(A)’] dated 31.08.2016 relating to assessment year 2010-11 in ITA No.1004/Chd/2018, Learned Pr.Commissioner of Income Tax- 2, Chandigarh [in short the ‘Ld.PCIT’] dated 14.03.2017 relating to assessment year 2012-13 in ITA No.1021/Chd/2018 and Learned Pr.Commissioner of Income Tax-II, Chandigarh [in short the ‘Ld.PCIT’] dated 10.03.2016 relating to assessment year 2011-12 in ITA No.1004/Chd/2018. 2. In ITA No.1004/Chd/2018, at the outset, it is noted that there is a delay in filing of the appeal by 507 days. In this regard, the Ld. AR has submitted that the order was served on the assessee on 06.01.2017 and thereafter the appeal was filed on 27.07.2018 with delay of 507 days. It was submitted that the assessee was mentally unfit due to ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 3 conspiracy created against him by involving him in certain fake cases which were latter converted into FIR and the assessee was also sentenced to prison during this period. It was submitted that the assessee was hospitalized from time to time and only on recovering from the health issues and coming out of mental trauma of jail custody, he took steps to engage the Counsel and filed the present appeal. It was submitted that there was a reasonable and bonafide reason for not filing the appeal within the prescribed time and the delay so happened may kindly be condoned and the assessee be heard on merits of the case. In support, our reference was drawn to the sworn affidavit submitted by the assessee and the contents thereof reads as under: “1. That I am a permanent resident of 80, B Block, Kansal Enclave, Mohali, Punjab. 2. That I am a regular Income tax assessee with ITO, Ward 6(2), Mohali and my PAN number is ANPL0443K. 3. That Income Tax assessment for my case for AY 2010-11 was concluded by Ld. DCIT, Circle 6(1), Mohali vide order dtd. 26.03.2013 where against I filed appeal before the Worthy CIT(A), Chandigarh. This appeal was transferred by Income Tax Department to Worthy CIT(A)-2, Gurgaon without any intimation to me. 4. That the above referred appeal was dismissed ex- parte by Worthy CIT(A)-2, Gurgaon vide order dated 31.08.2016 which was served on me/person know to me on 06.01.2017. 5. That against above order of Worthy CIT(A) served on me on 06.01.2017, I filed appeal before the Hon'ble ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 4 ITAT, Chandigarh on 27.07.2018. 6. That the above appeal has been filed late by 507 days beyond the limitation period prescribed. 7. That as regards the reason for delay in filing appeal before the Hon'ble ITAT by 507 days, the same is as under: a. That during the period 06.02.2017 to 28.09.2017, I was mentally unfit and was not in a position to take further action and/or consult and engage counsel for preparation and arguing appeal against ex-parte order of Worthy CIT(A). During the period, I remained mentally unfit due to the conspiracy created against me for involving me in fake cases. Which was further converted/resulted into FIR. b. That due to some allegation of my involvement in some criminal act, an FIR was registered against me and I was sentenced to prison on 29.09.2017 and was only let out on 21.03.2018. I was released only when the Hon'ble High Court on bail. A copy of the FIR alongwith the order of the same authority sentencing me to prison is attached herewith. Further, a copy of order of Hon'ble Punjab Haryana High court for releasing me from this sentence is attached alongwith. c. That after release from the prison after remaining in custody for about 6 months, I became physically as well as mentally unfit. I could not recall that the appeal has not been filed against above order of Worthy CIT(A). Further, I my diabetes also turned bad and I became a chronic am a diabetic patient. I remained hospitalized. Due to all these factors, from 22.03.2018 to 26.07.2018, I could not look into the process of engaging a counsel and file appeal against order of Worthy CIT(A). During the period, I remained hospitalised for treatment and was being treated by various doctors. A copy of a certificate from my doctors in this regard are attached. d. That on my recovery from the health ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 5 issues and coming out of mental trauma of Jail custody, I immediately took further action to file an appeal and engaged a counsel to enable me to do so and appeal was filed on 27.07.2018. e. That all above lead to delay of 507 days in filing of appeal. 8. That there was reasonable and bonafide cause in not filing the appeal in prescribed time before the Hon'ble ITAT. The delay in filing of the appeal deserves to be condoned and I pray that the same may please be condoned. I deserve to be heard on merits of the case and I undertake to co-operate fully towards early disposal of this matter.” 3. Per contra, the Ld. DR submitted that there is a substantial delay which has happened in the filing of the present appeal and the assessee has failed to explain the reasonable cause for the delay in filing such appeal. Accordingly, the Ld. DR opposed the condonation appeal filed by the assessee. 4. Heard both the parties and perused the material available on record. There is no dispute that there has been a delay in filing the present appeal and the period of delay as admitted by the assessee comes to 507 days. There is also no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there was sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. The explanation of the ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 6 assessee therefore becomes relevant to determine whether the same reflects sufficient cause on his part in not presenting the present appeal within the prescribed time. In the instant case, it has been contended by the ld AR and as also stated in the affidavit so submitted by the assessee that the assessee was mentally unfit due to conspiracy created against him by involving him in certain fake cases which were latter converted into FIR and the assessee was also sentenced to prison during this period. It was submitted that the assessee was hospitalized from time to time and only on recovering from the health issues and coming out of mental trauma of jail custody, he took steps to engage the Counsel and filed the present appeal. The copy of FIR, order of Hon'ble High Court for releasing him from the prison and certificate from the Doctors are also placed on record. The contents of the affidavit and supporting documentation have not been disputed by the Revenue. We therefore find that the assessee was under the mental and physical duress in terms of facing and attending to other criminal cases which apparently took precedence and prevented him from taking steps in terms of filing the present appeal and there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal. We therefore find that there exists sufficient ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 7 and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon’ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred and the assessee deserve to be heard on merits of the case. Therefore, in exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits. 5. In ITA No.1021/Chd/2018, we find that there is again a delay by 441 days as admitted by the assessee in filing the present appeal. During the course of hearing, the Ld. AR has reiterated the submissions made earlier and has drawn our reference to the affidavit filed by the assessee in this regard and has prayed for condoning the delay in filing the present appeal. 6. Per contra, the Ld. DR has again opposed the condonation petition filed by the assessee. 7. Considering the fact that similar circumstances exist for the delay in filing the present appeal, following the aforesaid discussions in ITA No.1004/Chd/2018, the delay ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 8 so happened is hereby condoned as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits. 8. Now coming back to the grounds of appeal taken by the assessee in ITA No.1004/Chd/2018 against the impugned order passed by the Ld.CIT(A)-2, Gurgaon dated 31.08.2016 pertaining to Assessment Year 2010-11. 9. One of the grounds of appeal taken by the assessee relates to ex-parte order passed by the Ld.CIT(A) without providing reasonable opportunity to the assessee. In this regard, the Ld. AR has submitted that the reasons for non- appearance before the Ld.CIT(A) was that the notices fixing the date of hearing were not served upon the assessee. It was submitted that in the impugned order, the Ld.CIT(A) has himself stated that the notices issued on 08.07.2016, 19.07.2016 and 12.08.2016 fixing the date of hearing were returned undelivered. It was accordingly submitted that due to non-awareness of the proceedings before the Ld.CIT(A), the matter could not be attended by the assessee. It was submitted that the matter may be remanded back to the office of ld CIT(A) and the assessee undertakes to cooperate and participate fully towards early disposal of the matter. ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 9 10. Per contra, the Ld. DR has drawn our reference to the impugned order and submitted that the notices fixing the date of hearing were issued on three occasions. However, there was not response and none attended on behalf of the assessee. It was accordingly submitted that the Ld.CIT(A) was left with no option and decided the mater on the basis of material available on record. 11. Heard both the parties and perused the material available on record. Considering the fact that the matter has admittedly not been decided on merits and we donot have the benefit of the findings of the ld CIT(A) and so is the case with the Revenue and the assessee, it would be appropriate that the matter is remanded back to the file of the ld CIT(A) who shall examine the same on merits after providing reasonable opportunity to the assessee. The assessee is also directed to attend to the proceedings as so directed and file necessary submissions/documentation as so instructed. 12. The rest all grounds of appeal are thus not adjudicated upon and left open. 13. The appeal of the assessee is partly allowed for statistical purposes. ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 10 14. Similarly, in ITA No.1021/2018, the assessee has raised various grounds of appeal. In one of the grounds of appeal, the assessee has challenged the impugned revisionary order u/s 263 of the Act on account of lack of opportunity. In this regard, Ld. AR has again reiterated the submissions made earlier and it was submitted that notices fixing the date of hearing on 27.01.2017 and 03.03.2017 were not served on the assessee and the same were returned undelivered and it was due to such unawareness that the proceedings could not be attended. It was accordingly submitted that the matter may kindly be set aside to the file of Ld.CIT(A) and the assessee hereby undertake to cooperate and participate towards early disposal of the matter. 15. Per contra, the Ld. DR submitted that the notices dated 27.01.2017 and 03.03.2017 were issued to the assessee. However, the assessee failed to avail of the opportunity as neither the assessee nor any authorized representative appeared on the specified date and even no communication was received from the assessee. It was accordingly submitted that the Ld.CIT(A) accordingly proceeded in the matter and has set aside the order passed by the AO u/s 143(3) of the Act, dated 26.03.2015 with a direction to pass an order afresh in accordance with law keeping in view the above observations and also in view of ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 11 the queries raised in the show cause notice dated 27.01.2017 after allowing opportunity of being heard to the assessee. It was accordingly submitted that there is no infirmity in the impugned order passed by the Ld.CIT u/s 263 of the Act and the same be confirmed. 16. Heard both the parties and perused the material available on record. Considering the fact that the matter has admittedly not been decided on merits and we donot have the benefit of the findings of the ld CIT(A) and so is the case with the Revenue and the assessee, it would be appropriate that the matter is remanded back to the file of the ld CIT(A) who shall examine the same on merits after providing reasonable opportunity to the assessee. The assessee is also directed to attend to the proceedings as so directed and file necessary submissions/documentation as so instructed. 17. The rest all grounds of appeal are thus not adjudicated upon and left open. 18. The appeal of the assessee is partly allowed for statistical purposes. 19. Similarly, in ITA.1005/Chd/2018 challenging the order passed u/s 263 of the Act for assessment year 2011- ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 12 12, the assessee has raised various grounds of appeal and one of the grounds of appeal relates to passing the impugned order without affording reasonable opportunity to the assessee. In this regard, the Ld. AR submitted that the notice fixing the date of hearing was not served on the assessee and it is on record of the Ld. Pr.CIT that the notices issued on 25.02.2016 fixing the date of hearing were returned undelivered and it was due to such unawareness that the proceedings could not be attended and the order was passed ex-parte without decision on merits by the Ld. Pr.CIT. It was accordingly submitted that the order so passed by the Ld. Pr.CIT may be set aside and the matter be remanded back for fresh consideration. 20. Per contra, the Ld. AR submitted that the show cause notice dated 23.02.2016 was sent to the assessee through Speed Post and the same has been returned back undelivered. At the same time, notices were served on the assessee’s Chartered Accountant on 26.02.2016 and a copy was also sent at the address of the assessee i.e. Vill. & PO Langah, Distt. Gurdaspur and despite service of notices from all these means, the assessee has failed to avail this opportunity and even that queries raised during the proceedings u/s 263 of the Act remained unexplained. The assessment order passed u/s 143(3) of the Act dated ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 13 27.03.2014 was set-aside with a direction to pass a fresh order in accordance with law keeping in view the observations by the Ld. Pr.CIT and after allowing opportunity of being heard to the assessee. It was accordingly submitted that there is no infirmity in the order so passed by the Ld. Pr.CIT and the same may kindly be confirmed. 21. Heard both the parties and perused the material available on record. Considering the fact that the matter has admittedly not been decided on merits and we donot have the benefit of the findings of the ld CIT(A) and so is the case with the Revenue and the assessee, it would be appropriate that the matter is remanded back to the file of the ld CIT(A) who shall examine the same on merits after providing reasonable opportunity to the assessee. The assessee is also directed to attend to the proceedings as so directed and file necessary submissions/documentation as so instructed. 22. The rest all grounds of appeal are thus not adjudicated upon and left open. 23. The appeal of the assessee is partly allowed for statistical purposes. ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12 14 24. In the result, all the three appeals filed by the assessee are partly allowed for statistical purposes. Order pronounced on 17.01.2022. Sd/- Sd/- (SUDHANSHU SRIVASTAVA) (VIKRAM SINGH YADAV) /Judicial Member /Accountant Member Dated: 17.01.2022 *रती* आदेश क # त$ल%प अ(े%षत/ Copy of the order forwarded to : 1. अपीलाथ)/ The Appellant 2. #*यथ)/ The Respondent 3. आयकर आय ु +त/ CIT 4. आयकर आय ु +त (अपील)/ The CIT(A) 5. %वभागीय # त न.ध, आयकर अपील य आ.धकरण, च0डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड फाईल/ Guard File ! " स / By order, सह &ंज / Assistant Registrar