Sh. Parveen Kumar, Chandigarh V. ACIT, C-2(1), Chandigarh

ITA 1112/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6490 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 131; 272A; 272(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHES B, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 1112,1113 & 1114/CHD /2017 ASSESSMENT YEAR: 2012-13 SHRI PARVEEN KUMAR, VS THE ACIT, H.NO. 1526, SECTION 18D, CIRCLE 2(1), CHANDIGARH. CHANDIGARH. PAN : BYMPS6031C (A PPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI MANJIT SINGH, SR.DR DATE OF HEARING : 22.11.2017 DATE OF PRONOUNCEMENT : 13.12. 2017 ORDER PER BENCH THESE ARE THREE APPEALS FILED BY THE ASSESSEE ASSAILING T HE CORRECTNESS OF THE THREE SEPARATE ORDERS DATED 31.03.2 017 OF CIT(A)-I CHANDIGARH PERTAINING TO 2012-13 ASSESSMENT YEARS WHER EIN THE PENALTY IMPOSED U/S 272A(1)(C) OF THE ACT HAS BEEN UPHELD BY THE A O ON ACCOUNT OF LACK OF RESPONSE IN REGARD TO THE SUMMONS ISSUED U/S 131 REQUIRING THE ASSESSEE TO BE PRESENT ON 20.02.2015 IN THE CASES OF M/ S SOLAN S.R. SERVICES PVT. LTD., IN THE CASE OF M/S SHARVILA SERVICES AND PROMOTERS PVT. LTD. AND IN THE CASE OF M/S MOUNT HILLS SERVICES & PROMOT ERS PVT. LTD. THE PENALTY IMPOSED U/S 272(1)(C) HAS BEEN UPHELD BY THE C IT(A) ON THE GROUNDS THAT THE RESPECTIVE APPEALS WERE FILED BEYOND LIMIT ATION. THE LD. AR ADDRESSING THE FACTS SUBMITTED THAT IN THE FACTS OF TH E PRESENT CASE, THE PRESENCE OF THE ERSTWHILE EMPLOYEE WAS REQUESTED BY THE AO AND SINCE THE EMPLOYEE HAD LEFT THE SERVICES OF THE ASSESSEES GRO UP CONCERNS, THE NOTICE DELIVERED AT THE ASSESSEE'S PREMISES FOR HIS PRES ENCE COULD NOT BE CONVEYED TO HIM. AS A RESULT OF THIS UNINTENTIONAL LAPSE, IT LE D TO THE PASSING OF THE EX-PARTE ORDER. THE APPEALS, IT WAS SUBMIT TED, WERE FILED LATE AS THOUGH ULTIMATELY THE EMPLOYEE WAS LOCATED WHICH FACT TOOK TIME. THE DELAY ACCORDINGLY IT WAS SUBMITTED, HAS OCCURRED FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE AND THE IMPUGNED ORDER HA S BEEN PASSED IGNORING THE FACT THAT THOUGH THE SERVICE OF NOTICE HAS B EEN AT THE ADDRESS, HOWEVER, THE EMPLOYEE HAD LEFT THE SERVICES AND THE REQU IREMENT FOR HIS ITA 1112TO1114/CHD/2017. A.Y. 2012-13 PAGE 2 OF 2 PRESENCE COULD NOT BE COMMUNICATED. IN THESE CIRCUMSTA NCES IT WAS HIS PRAYER THAT THE DELAY MAY BE CONDONED AND THE IMPUGNE D ORDER MAY BE SET ASIDE BACK TO THE FILE OF THE CIT(A) FOR RE-ADJUDICATION ON MERITS. 3. THE LD. SR.DR THOUGH PLACED RELIANCE UPON THE IMPUGNED ORDER, SUBMITTED THAT IN CASE THE ASSESSEE IS ABLE TO DEMONSTR ATE THAT HE HAD LEFT THE EMPLOYMENT OF THE GROUP CONCERN AND THUS, COULD NOT BE CONTACTED, HE WOULD HAVE NO OBJECTION IF THE DELAY IS CONDONED. 4. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. THE RECORD SHOWS THAT THE APPEAL HAS BEEN DISMISSED ON THE GROUNDS THAT IT WAS DELAYED BY 1.5 MONTHS. THE ARGUMEN T THAT THE NOTICE WAS NEVER SERVED UPON THE ASSESSEE AS A REASON FOR D ELAY IN FILING OF THE APPEAL HAS BEEN REJECTED ON THE REASONING THAT PENALTY ORDERS HAVE BEEN PASSED EX-PARTE WITHOUT HEARING THE ASSESSEE AS THE S ERVICE OF NOTICE ON THE REPRESENTATIVE OF M/S SOLAN S.R. SERVICES PVT. LTD., IN THE CASE OF M/S SHARVILA SERVICES AND PROMOTERS PVT. LTD. AND OF M/S MOUN T HILLS SERVICES & PROMOTERS PVT. LTD. WAS AT THE CORRECT ADDRESS. THE SAID REASONING CANNOT BE ACCEPTED IN THE LIGHT OF THE ORAL ARGUMENT THA T SHRI PARVEEN KUMAR NO LONGER WAS THE EMPLOYEE OF THE GROUP CONCERN. HOWEVER, SINCE THIS CLAIM IS NOT DEMONSTRATED ON FACTS, EITHER BY WAY OF A FFIDAVIT OR ANY OTHER DOCUMENT, THUS WITHOUT GETTING INTO THE CORRECTNE SS OF THE SAME, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED B ACK TO THE FILE OF CIT(A). THE ASSESSEE IS DIRECTED TO SUPPORT THE ORAL AR GUMENT BY FILING SUPPORTING EVIDENCES AS DEEMED FIT. THE LD. CIT(A), THEREAFTE R, SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE A SSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.12. 2017. SD/- SD/- ( DR.B.R.KUMAR) ( DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.