Sh. Pardeep Kumar, Sirhind V. ITO, Mandi Gobindgarh

ITA 1267/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68448 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, JM ITAS NO. 1265,1266 & 1267/CHD/201212 ASSESSMENT YEAR : 2007-08 PARDEEP KUMAR V I.T.O. SIRHIND PROP. M/S DHIMAN ENGG & HQ MANDI ENGRAVERS GOBINDGARH BRAHMANMAJRA SIRHIND AODPK 7002F (APPELLANT) (RESPONDENT) APPELLANT BY SHRI JASPAL SHARMA RESPONDENT BY: SHRI AKHILESH GUPTA DATE OF HEARING 5.8.2013 DATE OF PRONOUNCEMENT 2.9.2013 O R D E R PER T.R.SOOD, A.M ITA NO. 1265/CHD/2012 THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 25. 9.2012 OF THE LD. CIT(A), PATIALA. 2 IN THIS APPEAL THE ASSESSEE HAS RAISED VARIOUS GR OUNDS. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE LD. CIT(A) W ITHOUT ADJUDICATING THE ISSUES ON MERITS. PERHAPS THIS HA S BEEN DONE AS THE APPEAL FILED BEFORE THE LD. CIT(A) WAS TREAT ED TO BE LATE. ASSESSMENT ORDER IS PASSED ON 30.11.2009 AND APPEAL HAS BEEN FILED ON 30.6.2010. 4 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT THE ASSESSMENT ORDER WAS PASSED U/S 144 AND THE SAI D ASSESSMENT ORDER WAS NEVER SERVED ON THE ASSESSEE. THE ASSESSEE CAME TO KNOW ABOUT THE SAME ONLY WHEN A SH OW 2 CAUSE NOTICE FOR PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WAS SERVED ON THE ASSESSEE ON 1.6.2010. THEREAFTER THE ASSESSEE OBTAINED COPY OF THE ASSESSMENT ORDER AND FILED THE APPEAL. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IF THE DATE OF RECEIPT OF ASSESSMENT ORDER IS RECKONED IN THE MONTH OF JUNE 2010 THEN THERE IS NO DELAY AND THEREFORE, TH E MATTER SHOULD BE SENT BACK TO THE FILE OF LD. CIT(A) FOR ADJUDICATION ON MERITS. 5 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SU BMITTED THAT THE ASSESSMENT ORDER WAS WITH HIM WHICH SHOWS THAT THE ASSESSMENT ORDER WAS SERVED THROUGH AFFIXTURE AND A CCORDINGLY HE SUPPORTED THE ORDER OF THE LD. CIT(A). 6 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT THE LD. CIT(A) ADJUDICATED THE APPEAL VIDE PARA 4 WHICH IS AS UNDER: 4 IN THIS CASE THE ITNS 51 HAS BEEN RECEIVED FROM THE A.O. IT IS NOTED THAT THE NOTICE FOR DEMAND WERE SE RVED ON 31.02.2009. HOWEVER THE APPEAL MEMO WAS SUBMITTED I N THIS OFFICE BY THE APPELLANT ON 30.06.2010. THEREFORE TH ERE IS CONSIDERABLE DELAY IN SUBMISSION OF THE APPELLANT. THE APPELLANT HAS SUBMITTED THAT HE CAME TO KNOW ABOUT EX-PARTE ASSESSMENT ONLY WHEN THE NOTICE U/S 271(1)(C) WAS R ECEIVED ON 01.06.2010. HOWEVER THE A.O IN HIS COUNTER COMME NTS HAS CATEGORICALLY SUBMITTED THAT THE NOTICE FOR DEMAND WAS SENT TO THE ASSESSEE BY REGISTERED POST VIDE POSTAL RECEIPT S NO. SPEE7802591131N DATED 30.09.2008. FURTHER THE COUNS EL OF THE ASSESSEE APPEARED DURING THE ASSESSMENT PROCEED INGS AND DID NOT RAISE ANY OBJECTIONS. THE PLEA OF THE A SSESSEE HAS NO FORCE IN VIEW OF SECTION 292BB OF IT ACT 61.. IN VIEW OF THIS I AM OF THE OPINION THAT THERE IS NOT SUFFICIENT AN D GOOD CAUSE FOR DELAY IN FILING APPEAL. AS REGARDS THE DATE OF ASSESSMENT IS CONCERNED, THE A.O. IN HIS COUNTER COMMENTS NO. ITO /W- SRP/12-13/410 DATED 14.09.2012 HAS SUBMITTED THAT T HE ASSESSMENT IS FRAMED EX-PARTE ON 30.12.2009 AND THE ASSESSMENT ORDER CANNOT BE TREATED AS INVALID MEREL Y ON GROUND THAT DATE OF ASSESSMENT ORDER IS NOT MENTION ED IN THE ORDER. I AGREE WITH THE A.O. ON THIS COMMENTS AND I N VIEW OF SECTION 292B, THE ASSESSMENT ORDER CAN NOT BE HELD AS INVALID. FURTHER THE ASSESSEE HAS DULY PARTICIPATED IN THE A SSESSMENT PROCEEDINGS AND WAS AWARE OF THE ASSESSMENT BEING M ADE AND THEREFORE THE DELAY IN FILING APPEAL CAN NOT BE CONDONED. 3 THE ABOVE SHOWS THAT GLARING MISTAKES HAVE BEEN COM MITTED BY THE LD. CIT(A) LIKE STATING THAT DEMAND NOTICE WAS SERVED ON 31.2.2009. FIRST OF ALL FEBRUARY MONTH WOULD END O N 28TH AND THERE CANNOT BE A DATE AS 31.2.2009 . SECONDLY WHE N THE ASSESSMENT ORDER ITSELF WAS PASSED ON 30.11.2009 TH EN THE SAME COULD NOT HAVE BEEN SERVED IN FEBRUARY, 2009. MOREOVER, THE READING OF THE ABOVE PARAGRAPH WOULD SHOW THAT THE LD. CIT(A) HAS NOT EXAMINED THE ISSUE ON MERITS . THEREFORE, WE CONDONE THE DELAY, IF ANY, IN FILING THE APPEAL BEFORE THE LD. CIT(A) AND IN THE INTEREST OF JUSTIC E THE ISSUES ARE REMITTED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE SAME AFTER CONSIDERING THE ASSESSEE S SIDE. 7 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITAS NO. 1266 & 1267/CHD/2012 8 THESE TWO APPEALS ARE DIRECTED AGAINST THE ORDER DATED 25.9.2012 OF THE LD. CIT(A), PATIALA. 9 THESE TWO APPEALS ARE FOR LEVY OF PENALTY U/S 271 (1)(B) AND 271(1)(C) OF THE ACT. SINCE APPEAL ON QUANTUM HAS BEEN RESTORED BY US IN THE ABOVE NOTED PARAGRAPHS TO THE FILE OF LD. CIT(A), THESE TWO APPEALS WOULD ALSO GO BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE SAME ON M ERITS AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. 10 IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES. 11 IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2.9.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2.9.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR