Smt. Renu Jain, Zirakpur V. ITO-Ward-3(3), Chandigarh

ITA 1136/CHANDI/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0763 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 14-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Opportunity of being heard; Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay
• Section: 273B; 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B, CHANDIGARH BEFORE: SHRI. N.K.SAINI, VP & SHRI RAVISH SOOD, JM (VIRTUAL COURT) ITA NO. 1136/CHD/2019 ASSESSMENT YEAR : 2010-11 SMT. RENU JAIN SMT. RENU JAIN C/O PARIKSHIT AGGARWAL, C.A H.NO. 1238, SECTOR 22B, CHANDIGARH -160022 VS THE ITO WARD-3(3) CHANDIGARH PAN NO: AGWPJ7665C APPELLANT RESPONDENT ASSESSEE BY : SHRI PARIKSHIT AGGARWAL, C.A REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT DATE OF HEARING : 03/12/2020 DATE OF PRONOUNCEMENT : 04 /12/2020 ORDER PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER PASSED BY THE CIT(A)-1, CHANDIGARH, DATED 26/06/201 9, WHICH IN TURN ARISES FROM THE PENALTY IMPOSED BY THE A.O UNDER SEC. 271(1)(B) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), DATED. 11/06/2018 FOR A.Y. 2010-11. THE ASSESSEE HAS ASSAILED THE IMPUGNED ORDER ON THE FOLLOWING GROUND S OF APPEAL BEFORE US: 1. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE THE WO RTHY CIT(A) IN APPEAL NO. 10191/18-19 DATED 28.06.2019 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISIONS OF SECTION 250( 6) OF THE INCOME TAX ACT, 1961. 2. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, THE WOR THY CIT(A) HAS ERRED IN DISMISSING THE APPEAL IN LIMINE BY HO LDING THAT THE APPEAL FILED BY THE APPELLANT, AGAINST PENALTY IMPOSED U/S 271(L)(B) OF RS. 10,000/-, IS BEYOND PRESCRIBED LIMITATION PERIOD AND T HERE DID NOT EXIST 2 REASONABLE CAUSE FOR DELAY EVEN WHEN THE APPEAL HAD BEEN F ILED IN TIME AND THERE WAS NO QUESTION OF ANY DELAY THEREIN. 3. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, THE WOR THY CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE L D. AO IN LEVYING PENALTY U/S 271(L)(B) OF RS. 10,000/- ON ACCOUNT OF AL LEGED FAILURE TO COMPLY WITH THE NOTICE U/S 142(1) OF THE ACT EVEN WHEN THE APPELLANT HAD NOT BEEN SERVED WITH THE RELEVANT NOTICE. 4. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, THE WOR THY CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LD. AO FOR IMPOSING PENALTY OF RS. 10,000/- U/S 271(L)(B) WITHOUT CONSIDE RING THE PROVISIONS OF S. 273B OF THE ACT AND ON CONSIDERATION OF PROVISIONS OF S. 273B, THE IMPUGNED PENALTY WAS NOT IMPOSABLE ON THE APPELLANT. 5. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION, DELET ION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISP OSAL OF THE SAME. 2. BRIEFLY STATED, ASSESSMENT IN THE CASE OF THE CA PTIONED ASSESSEE WAS FRAMED UNDER SECTION 144 R.W.S 147 OF THE ACT, AT A N INCOME OF RS. 67,73,630/-. AS THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDING S HAD NEITHER PUT UP AN APPEARANCE BEFORE THE A.O NOR FILED ANY REPLY IN PU RSUANCE TO THE QUERIES RAISED BY HIM, THEREFORE, PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) WERE INITIATED BY THE A.O. WHILE CULMINATING THE ASSESSM ENT VIDE HIS ORDER PASSED UNDER SECTION 144 R.W.S 147 OF THE ACT. SUBSEQUENTL Y, THE A.O. VIDE HIS ORDER DT. 11/06/2018 IMPOSED PENALTY UNDER SECTION 271(1)(B) OF RS. 10,000/- IN THE HANDS OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE ASSAILED THE PENALTY LEV IED BY THE A.O. UNDER SECTION 271(1)(B) BEFORE THE LD. CIT(A). IN THE COU RSE OF HEARING OF THE APPEAL IT WAS OBSERVED BY THE LD. CIT(A) THAT THE APPEAL FILE D BY THE ASSESSEE INVOLVED A DELAY OF 95 DAYS. ON BEING CONFRONTED WITH THE AFOR ESAID FACTUM OF DELAY IN FILING OF THE APPEAL, IT WAS SUBMITTED BY THE ASSES SEE THAT THE SAME HAD BEEN FILED WITHIN THE STATUTORY PERIOD AFTER THE SERVICE OF THE IMPUGNED ORDER. BE THAT AS IT MAY, THE ASSESSEE THEREAFTER FILED AN APPLICA TION SEEKING CONDONATION OF DELAY IN FILING OF THE APPEAL. AS IS DISCERNIBLE FR OM THE RECORDS, IT WAS THE CLAIM OF 3 THE ASSESSEE THAT AS THE IMPUGNED ORDER PASSED BY T HE A.O. UNDER SECTION 271(1)(B) WAS NEVER SERVED UPON HER AND WAS INFACT SERVED THROUGH AFFIXTURE AT A WRONG ADDRESS WHICH HAPPENED TO BE A GOVERNMENT A CCOMMODATION THAT WAS ALLOTTED TO HER HUSBAND AND HAD BEEN VACATED WA Y BACK ABOUT 10 YEARS AGO, THEREFORE, SHE WAS NEVER PUT TO NOTICE ABOUT T HE IMPUGNED PROCEEDINGS OR THE CONSEQUENTIAL PENALTY ORDER THEREIN PASSED B Y THE A.O. HOWEVER, THE CIT(A) AFTER DELIBERATING ON THE EXPLANATION TENDER ED BY THE ASSESSEE WAS NOT PERSUADED TO SUBSCRIBE TO THE SAME. OBSERVING, THAT THE ASSESSEE HAD FAILED TO COME FORTH WITH ANY REASONABLE CAUSE EXPLAINING THE DELAY IN FILING OF THE APPEAL THE CIT(A) DECLINED TO CONDONE THE DELAY THE REIN INVOLVED IN EXERCISE OF THE POWERS VESTED WITH HIM UNDER SUB-SECTION (3) OF SECTION 249 OF THE ACT AND DISMISSED THE APPEAL. 4. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF T HE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. 5. THE LD. AUTHORISED REPRESENTATIVE (IN SHORT A.R ) FOR THE ASSESSEE AT THE VERY OUTSET OF THE HEARING OF THE APPEAL SUBMITTED THAT THE CIT(A) WITHOUT APPRECIATING THE FACTS IN THE RIGHT PERSPECTIVE HAD MOST ARBITRARILY DISMISSED THE APPEAL ON ACCOUNT OF THE IMPUGNED DELAY INVOLVED IN FILING OF THE SAME. IT WAS SUBMITTED BY THE LD. AR THAT AS THE IMPUGNED ORDER WAS SERVED BY THE DEPARTMENT AT A WRONG ADDRESS WHICH HAPPENED TO BE A GOVERNMENT ACCOMMODATION ALLOTTED TO THE ASSESSEES HUSBAND TH AT HAD BEEN VACATED ABOUT 10 YEARS BACK ON HIS RETIREMENT, THEREFORE, T HE ASSESSEE HAD REMAINED UNAWARE BOTH AS REGARD TO IMPUGNED PROCEEDINGS AND THE PENALTY ORDER THEREIN PASSED BY THE A.O. IT WAS FURTHER SUBMITTED BY THE LD. AR THAT THE ASSESSEE LEARNT ABOUT THE ORDER PASSED BY THE A.O. UNDER SECTION 271(1)(B) ONLY AFTER HER BANK ACCOUNT WAS ATTACHED BY THE DEPARTME NT. AS SUCH, IT WAS AVERRED BY THE A.R THAT THE MOMENT THE ASSESSEE LEA RNT ABOUT THE IMPUGNED PENALTY IMPOSED BY THE A.O UNDER SECTION 271(1)(B), SHE INVOLVING NO FURTHER LOSS OF TIME FILED AN APPEAL BEFORE THE CIT(A). IN THE B ACKDROP OF HIS AFORESAID 4 CONTENTIONS IT WAS SUBMITTED BY THE LD. AR THAT THE CIT(A) HAD ERRED IN DISMISSING THE APPEAL WITHOUT CONSIDERING THE FACTUAL POSITION IN THE RIGHT PERSPECTIVE. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. AS IS DISCERNIBLE FROM RECORD, THE APPEAL FILED BY THE ASSESSEE IN THE BACKDROP OF THE DATE ON WHICH THE IMPUGNED ORDER IS STATED TO H AVE BEEN SERVED ON THE HER I.E 13/06/2018 INVOLVED A DELAY OF 95 DAYS. IT IS T HE CLAIM OF THE ASSESSEE THAT AS THE IMPUGNED ORDER PASSED UNDER SECTION 271(1)(B) W AS GOT SERVED AT WRONG ADDRESS I.E AT THE OLD GOVERNMENT ACCOMMODATION THA T WAS ALLOTTED TO THE ASSESSEES HUSBAND AND WAS VACATED ABOUT 10 YEARS B ACK ON HIS RETIREMENT, THEREFORE, SHE HAD REMAINED UNAWARE ABOUT IMPUGNED PROCEEDINGS AND THE CONSEQUENTIAL PENALTY IMPOSED BY THE A.O. UNDER THE AFORESAID STATUTORY PROVISION. THE AFORESAID FACTUAL POSITION HAD NEITH ER BEEN REBUTTED BY THE LOWER AUTHORITIES NOR ANY MATERIAL HAD BEEN PLACED BEFORE US BY THE LD. D.R TO CONTROVERT THE SAME. ALTHOUGH, WE ARE NOT OBLIVIOUS OF THE FACT THAT AN ASSESSEE IS OBLIGATED TO INTIMATE HIS/HER CHANGE OF ADDRESS TO THE DEPARTMENT, BUT THEN, IN THE CASE BEFORE US THE ASSESSEE WAS EARLIER NOT BEING ASSESSED TO TAX AND THE IMPUGNED PROCEEDINGS WERE INITIATED UNDER SECTION 1 47 OF THE ACT IN HER HANDS. IN THE TOTALITY OF THE FACTUAL POSITION, WE ARE OF A STRONG CONVICTION THAT THERE IS SUBSTANTIAL FORCE IN THE CLAIM OF THE ASSESSEE THAT AS THE IMPUGNED ORDER WAS SERVED THROUGH AFFIXTURE AT A WRONG ADDRESS THEREFO RE, SHE WAS AT NO STAGE AWARE ABOUT THE SAME. INFACT, WE ARE OF THE CONSIDE RED VIEW THAT THE ASSESSEE WOULD NOT HAD GAINED BY DELAYING THE FILING OF THE PRESENT APPEAL. APART FROM THAT, NO INTENTIONAL DELAY IN FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A) EMERGES FROM THE RECORD. ON THE BASIS OF THE AFORESAID FACTUAL MATRIX WE ARE UNABLE TO CONCUR WITH THE DISMISSAL OF THE APPE AL BY THE CIT(A) WHO WE FIND HAD DECLINED TO CONDONE THE DELAY THEREIN INVOLVED BY EXERCISING THE DISCRETION 5 VESTED WITH HIM UNDER SUB-SECTION (3) OF SEC. 249 OF THE ACT. ACCORDINGLY, WE RESTORE THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION TO HEAR THE APPEAL AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 04/12/2020 . SD/- SD/- ( N.K. SAINI) (RAVISH SOOD ) VICE PRESIDENT JUDICIAL MEMBER AG DATE: 04/12/2020 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, CHANDIGARH 6. GUARD FILE