AZAD ASSOCIATES, KISHANGARH V. DEPUTY COMMISSIONER OF INCOME TAX, CPC(TDS), GHAZIABAD

ITA 1161/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1757 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Assessee Lawyers: O P BHATEJA ITP
• Keywords: Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1160/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 (2 ND QUARTER) SHRI MOHAN DASS HASSANI DIVYA MANSION, CHANDRA COLONY, MADANGANJ-KISHANGARH. CUKE VS. THE DCIT, CPC (TDS) GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABLPH 0661 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1161/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 (3 RD QUARTER) AZAD ASSOCIATES, DIVYA MANSION, CHANDRA COLONY, MADANGANJ-KISHANGARH. CUKE VS. THE DCIT, CPC (TDS) GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAGFM 9192 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1162/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 (2 ND QUARTER) MURLIDHAR HASSANI DIVYA MANSION, CHANDRA COLONY, MADANGANJ-KISHANGARH. CUKE VS. THE DCIT, CPC (TDS) GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACPH 7346 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1163/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 (3 RD QUARTER) KISHORE KUMAR HASSANI, DIVYA MANSION, CHANDRA COLONY, MADANGANJ-KISHANGARH. CUKE VS. THE DCIT, CPC (TDS) GHAZIABAD. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACPH 7350 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI O.P. BHATEJA (ITP) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12.11.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12/11/2018. VKNS'K@ ORDER PER BENCH : THESE FOUR APPEALS BY THE DIFFERENT ASSESSEES ARE D IRECTED AGAINST FOUR SEPARATE ORDERS OF THE LD. CIT (A), AJMER DATED 10. 08.2018 AND 16.08.2018 ARISING FROM THE ORDERS PASSED BY THE AO UNDER SECTION 200A READ WITH SECTION 234E OF THE IT ACT IN RESPECT OF 2 ND , 3 RD , 2 ND AND 3 RD QUARTERS OF ASSESSMENT YEAR 2013-14 RESPECTIVELY. THE COMMON GROUNDS RAISED IN ALL THES E APPEALS ARE AS UNDER :- 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A), AJMER HAS ERRED ON FACTS AND IN LAW IN NOT ADMITTIN G THE APPEAL OF THE APPELLANT AGAINST LATE FEE IMPOSED U/S 234E OF THE I.T. ACT UNDER CLAUSE (C) OF SUB SECTION (1) OF THE SECT ION 200A OF THE I.T. ACT. 2. THE LD. AO HAS ERRED ON FACTS AND IN LAW IN LEVY ING LATE FILING FEE U/S 234E OF THE I.T. ACT. 3. APPELLANT KEEPS ITS RIGHT RESERVE TO ADD, ALTER, AMEND OR DELETE IN GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARI NG OF APPEAL. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE APPEALS OF THE ASSESSEE WE RE DISMISSED BY THE LD. CIT (A) IN LIMINE AS NOT MAINTAINABLE BEING BARRED BY LIMIT ATION AND THE IMPUGNED ORDERS WERE PASSED EX PARTE AS NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT (A) HAS NOT GIVEN THE ASSESSEE AN 3 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. OPPORTUNITY AFTER THE REPORT DATED 07.08.2018 OF TH E AO WAS CONSIDERED FOR THE PURPOSE OF LIMITATION FOR FILING THE APPEALS BEFORE THE LD. CIT (A). HE HAS THUS CONTENDED THAT THE LD. CIT (A) HAS ACCEPTED THE NOT ICE OF DEMAND ALLEGEDLY SENT BY THE AO THROUGH EMAIL TO THE CHARTERED ACCOUNTANT OF THE ASSESSEE ON 15.12.2013 INSTEAD OF DATE OF NOTICE RECEIVED BY THE ASSESSEE. HENCE, THE LD. A/R SUBMITTED THAT THE LD. CIT (A) HAS PASSED THE IMPUGNED ORDERS REJECTING THE APPEALS WITHOUT GIVING AN APPROPRIATE OPPORTUNITY TO THE ASSESSEE T O EXPLAIN THE DELAY, IF ANY, IN FILING THESE APPEALS. IN SUPPORT OF HIS CONTENTION , HE HAS RELIED UPON THE DECISION OF THIS TRIBUNAL DATED 22 ND MAY, 2018 IN CASE OF AEN (O&M), AJMER VIDHYUT VITA RAN NIGAM LTD. VS. ACIT, CPC (TDS) IN ITA NOS. 405 & 40 9/JP/2018 AS WELL AS DECISIONS OF THE TRIBUNAL IN CASE OF MOHAN LAL VYAS VS. DCIT CPC (TDS) IN ITA NO. 830/JP/2018 DATED 19.09.2018 AND IN CASE OF TRIMURT Y BUILDCON P. LTD. VS. DCIT CPC (TDS) IN ITA NOS. 18, 19 & 20/JP/2017 DATED 29.10.2 018. 3. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE LD. CIT (A) HAS GIVEN NUMBER OF OPPORTUNITIES TO THE ASSESSEE AS STATED I N THE IMPUGNED ORDER AND DESPITE THE SUFFICIENT OPPORTUNITIES GIVEN BY THE L D. CIT (A), NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT (A). THE REFORE, THE ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL AND FURTHER ONCE THE DEMAND NOTICE WAS SENT BY THE AO THROUGH EMAIL AS PROVIDED BY THE ASSESSEE, T HEN THE LIMITATION WILL RECKON FROM THE SAID DATE OF EMAIL AND NOT FROM ANY SUBSEQ UENT NOTICE, IF ANY, RECEIVED BY THE ASSESSEE. HE HAS RELIED UPON THE IMPUGNED ORDE R OF THE LD. CIT (A). 4 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE LD. CIT (A) HAS DECIDED AL L THESE THREE APPEALS OF THE ASSESSEE ON IDENTICAL REASONING IN PARA 3 & 4 AS UN DER :- 3.0. THE AO IN HIS REPORT DATED 07.08.2018 HAS R EPORTED AS UNDER:- VKIDS DK;KZY; DS I=KAD EKAD CIT(A)AJM/2018-19/2857 FNUKAD 26-07-2018 DS }KJK FU/KKZJFR SHRI MOHAN DAS HASSANI,- TAN- JDHM04574D DS }KJK VKIDS ;GKWA DH X;H VIHY LA[;K 382@2015&16 DJ FU/KKZJ.K O'KZ 2013-14@26 Q 2 ND DS LACA/K ESA FOHKKX }KJK FUDKYH X;H CDK;K EKAX DH LWPUK /KKJK 20 0 A DS RGR HKSTUS DK LCWR EKAXK X;K GS BL LACA/K ESA YS[K GS F D FOHKKXH; JSDKWMZ NS[KUS IJ IK;K X;K FD FU/KKZFJRH DKS BL EKAX DH LWP UK FNUKAD 15.12.2013 DKS FU/KKZFJRH }KJK FOOJ.KH ESA NH X;H BZ ESY VKBZ MH [e-mail] NH X;H FKH FTLDS FY;S FLLVE LS FUDKYH X;H LWPUK /KKJK 200 A O BLDKS LFOZL DJKUS DS FOOJ.K LAYXU 'KHV ESA MIYC/K GSA IZS'K.K JFTLVJ DH NK;KIZRH VKID S VOYKSDUKFKZ HKSTK TK JGK GSA VR% EKEYS ESA FU/KKZFJRH DS LE; IJ LFOZL DJK NH X;H FKH BL LACA/K ESA FJIKSZV VKIDKS IZLRQR GSA 4.0. THUS, FROM THE REPORT OF THE AO, IT IS CLEAR T HAT THE NOTICE OF DEMAND WAS SENT TO THE APPELLANT ON 15.12.2013 ON T HE EMAIL [e-mail] GIVEN BY THE APPELLANT. AS PER SECTION 249(2), THE APPEAL HAS TO BE PRESENTED WITHIN 30 DA YS OF DATE OF SERVICE OF NOTICE OF DEMAND. THE APPELLANT HAS NOT FILED THE APPEAL WITHIN THE PERIOD SPECIFIED U/S 249(2). THERE IS A N INORDINATE DELAY IN FILING THE APPEAL. I AM OF THE CONSIDERED VIEW THA T THE APPELLANT DID 5 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. NOT HAVE ANY SUFFICIENT CAUSE FOR NOT PRESENTING TH E APPEAL WITHIN THE PERIOD SPECIFIED U/S 249(2). HENCE, THE APPEAL IS D ISMISSED AS NOT ADMITTED. THUS IT IS CLEAR THAT AFTER THE REPORT OF THE AO DA TED 07.08.2018, NO HEARING WAS FIXED BY THE LD. CIT (A) AND THE IMPUGNED ORDERS WE RE PASSED ON 10.08.2018. THEREFORE, THE LD. CIT (A) HAS NOT GIVEN AN EFFECTI VE OPPORTUNITY OF HEARING TO THE ASSESSEE TO EXPLAIN THE DELAY IN FILING THE APPEAL, IF ANY, BEFORE THE LD. CIT (A). THIS TRIBUNAL IN CASE OF AEN (O&M) AJMER VIDHYUT VITARAN NIGAM LTD. VS. ACIT (SUPRA) VIDE ORDER DATED 22 ND MAY, 2018 HAS CONSIDERED AN IDENTICAL ISSUE IN PAR A 7 AS UNDER :- 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE LD. CIT (A) HA S DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINI BY RECORDING THE FINDING IN PARA 4 AS UNDER :- 4. THUS, FROM THE REPORT OF THE AO, IT IS CLEAR T HAT THE NOTICE OF DEMAND WAS SENT TO THE APPELLANT ON 20.08.2015 O N THE EMAIL [e-mail] GIVEN BY THE APPELLANT. AS PER SECTION 249(2), THE APPEAL HAS TO BE PRESENTED WITH IN 30 DAYS OF DATE OF SERVICE OF NOTICE OF DEMAND. THE APPELLA NT HAS NOT FILED THE APPEAL WITHIN THE PERIOD SPECIFIED U/S 24 9(2). THERE IS AN INORDINATE DELAY IN FILING THE APPEAL. I AM OF T HE CONSIDERED VIEW THAT THE APPELLANT DID NOT HAVE ANY SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE PERIOD SPECIFIED U /S 249(2). HENCE, THE APPEAL IS DISMISSED AS NOT ADMITTED. 6 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. THUS THE LD. CIT (A) HAS TAKEN INTO CONSIDERATION T HE ALLEGED SERVICE OF NOTICE OF DEMAND THROUGH E-MAIL. HOWEVER, OTHER TH AN THE ALLEGED E- MAIL, NO OTHER RECORD WAS REFERRED FOR SERVICE OF N OTICE TO THE ASSESSEE. EVEN OTHERWISE, THE ASSESSEE WAS NOT HEA RD ON THE POINT OF EXPLANATION OF DELAY, IF ANY, IN FILING THE APPEALS BEFORE THE LD. CIT (A). THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E LD. CIT (A) HAS DISMISSED THE APPEALS BEING BARRED BY LIMITATION EV EN WITHOUT GIVING A SPECIFIC OPPORTUNITY TO THE ASSESSEE TO EXPLAIN TH E DELAY, IF ANY. THE ASSESSEE HAS NOT CLAIMED ANY DELAY IN FILING THE AP PEALS BEFORE THE LD. CIT (A) WHEREAS THE LD. CIT (A) HAS CONSIDERED THE APPEALS FILED BY THE ASSESSEE AS BARRED BY LIMITATION. ACCORDINGLY, IN S UCH A SITUATION, A DEFECTIVE MEMO WAS REQUIRED TO BE ISSUED TO THE ASS ESSEE OR THE ASSESSEE OUGHT TO HAVE BEEN GIVEN AN EFFECTIVE OPPO RTUNITY OF HEARING ON THE POINT OF DELAY. ACCORDINGLY, IN THE FACTS A ND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASI DE THESE TWO APPEALS TO THE RECORD OF THE LD. CIT (A) FOR GIVING ONE MOR E OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND ALSO TO EXPLAIN TH E CAUSE OF DELAY, IF ANY, IN FILING THE APPEALS. AFTER CONSIDERING THE E XPLANATION OF THE ASSESSEE, THE LD. CIT (A) SHALL DECIDE THE ISSUE OF CONDONATION OF DELAY AND THEREAFTER THE APPEALS ON MERIT, IF NEED ARISES . ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL, WE SET ASIDE THESE THREE APP EALS TO THE RECORD OF THE LD. CIT (A) FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND ALSO TO EXPLAIN THE CAUSE OF DELAY, IF ANY, IN FILING THESE APPEALS. AFTER CONSIDERING THE EXPLANATION TO BE FURNISHED BY THE ASSESSEE, THE LD . CIT (A) SHALL DECIDE THE ISSUE OF CONDONATION OF DELAY AS WELL AS THE APPEALS ON MERI T. 7 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS. 5. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 12/11/20 18. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL; / ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 12/11/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANTS- SHRI MOHAN DAS HASSANI, M/S. AZA D ASSOCIATES & SHRI MURLIDHAR HASSANI, SHRI KISHORE KUMAR HASSANI, MADA NGANJ KISHANGARH. 2. THE RESPONDENT THE DCIT, CPC (TDS), GHAZIABAD. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1160, 1161, 1162 & 1163/JP/2 018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NOS. 1160, 1161 & 1162/JP/2018 SHRI MOHAN DASS HASSANI, MADANGANJ-KISHANGARH & OTH ERS.