Serbjeet Singh Sangha, Patiala V. ITO, Patiala

ITA 21/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73514 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.21/CHD/2014 ASSESSMENT YEAR : 2009-10 SHRI SERBJEET SINGH SANGHA, VS THE INCOME TAX OFF ICER, # 20, OFFICERS ENCLAVE, WARD 6, PHASE 1, PATIALA. PATIALA. PAN : AKNPS5538A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWAL RESPONDENT BY : SHRI J.S.NAGAR DATE OF HEARING : 26.02.2014 DATE OF PRONOUNCEMENT : 06.03.2014 O R D E R PER SUSHMA CHOWLA, JM THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) PATIALA DATED 25.10.2013 RELATING TO ASSESSMENT YEAR 2009-10 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE VID E GROUND NO. 1 READS AS UNDER : 1 A). THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN C ONFIRMING THE ORDER PASSED BY THE LD. ASSESSING OFFICER UNDER SECTION 143(3), WIT HOUT ACCORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE G ROUND THAT THE APPEAL WAS FILED BEYOND THE PERIOD OF LIMITATION WH EREAS AS PER THE ASSESSEE THE APPEAL WAS FURNISHED WELL WITHIN THE T IME THEREFORE THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) NEEDS TO BE SET ASIDE FOR NOT ADHERING TO THE BASIC PRINCIPLE OF LA W I.E. PRINCIPLE OF NATURAL JUSTICE. B) THAT ALTERNATIVELY AND WITHOUT PREJUDICE TO THE AFORESAID THE LD. COMMISSIONER OF INCOME TAX (APPEALS) POSSESS THE PO WER TO CONDONE 2 THE DELAY, ALLEGED TO BE OF 3 DAYS, WHEREIN THERE W AS SUFFICIENT CAUSE WITH THE ASSESSEE TO PRESENT THE APPEAL BELATEDLY. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE COMMISSIONER OF INCOME TAX (AP PEALS) IN LIMINE BEING FILED AFTER A DELAY OF THREE DAYS WHIC H WAS NOT CONDONED BY THE COMMISSIONER OF INCOME TAX (APPEALS). NO DE CISION WAS TAKEN ON THE MERITS OF THE ISSUES RAISED BY THE ASS ESSEE BECAUSE OF THE DISMISSAL OF THE APPEAL. 3. THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS) AND HAS RAISED THE PRELIMINARY ISSUE VIDE GROUND NO. 1 AGAINST DISMISSAL OF APPEAL BY THE COMMISSIONER OF INCOME TAX (APPEALS). THE ASSESSEE HAS ALSO RAI SED OTHER GROUNDS OF APPEAL AGAINST THE ISSUE ON MERITS. 4. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT THE OR DER OF THE ASSESSMENT IN THE CASE WAS PASSED ON 14.12.2011 AND THE SAID ASSESSMENT ORDER WAS SENT THROUGH THE NOTICE SERVER AND ALSO T HROUGH POST. 5. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMITTED THAT THERE WAS NO REASON FOR THE DELAY IN FILING THE APPEAL BEFORE TH E COMMISSIONER OF INCOME TAX (APPEALS). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSMENT ORDER IN THE CASE WAS PASSED ON 14.12.20 11. THE ASSESSEE RECEIVED THE ASSESSMENT ORDER THROUGH REGISTERED PO ST ON 19.12.2011. THE ASSESSEE FILED THE APPEAL BEFORE THE COMMISSION ER OF INCOME TAX (APPEALS) ON 18.01.2012 I.E. AS PER THE ASSESSEE WI THIN A PERIOD OF 29 DAYS. THE CLAIM OF THE ASSESSEE BEFORE THE COMMISS IONER OF INCOME TAX (APPEALS) WAS THAT THE SAME WAS FILED WITHIN TIME A ND WAS NOT BELATED. HOWEVER, THE ASSESSING OFFICER FURNISHED REPORT BEF ORE THE 3 COMMISSIONER OF INCOME TAX (APPEALS) THAT THE NOTIC E OF DEMAND WAS DULY SERVED UPON THE ASSESSEE ON 16.12.2011 THROUGH NOTICE SERVER AND IN VIEW THEREOF, THE COMMISSIONER OF INCOME TAX (AP PEALS) DISMISSED THE APPEAL FILED BY THE ASSESSEE BEING OUT OF TIME. WE FIND NO MERIT IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) IN THIS REGARD. THE ASSESSEE HAD A BONAFIDE REASON FOR FILING THE A PPEAL ON 18.01.2012 AFTER THE ASSESSMENT ORDER APPEALED AGAINST HAS BEE N RECEIVED BY THE ASSESSEE VIDE REGISTERED POST ON 19.12.2011. IN CA SE THE PERIOD OF 30 DAYS IS COUNTED FROM 19.12.2011, THE APPEAL OF THE ASSESSEE HAS BEEN FILED IN TIME. HOWEVER, IN CASE THE PERIOD OF 30 D AYS IS RECKONED FROM 16.12.2011 I.E. THE DATE ON WHICH THE NOTICE SERVER SERVED THE DEMAND NOTICE UPON THE ASSESSEE, THEN IN SUCH CIRCUMSTANCE S, THERE IS A DELAY OF ONLY THREE DAYS, WHICH MERITS TO BE CONDONED BECAUS E OF THE CONFUSION IN SERVICE OF THE ASSESSMENT ORDER UPON THE ASSESSEE, BY TWO DIFFERENT MODES. ACCORDINGLY, WE CONDONE THE DELAY OF THREE DAYS, IF ANY, IN FILING THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) TO DECIDE THE ISSUE RAISED ON MERITS OF T HE APPEAL. THE GROUND NO.1 RAISED BY THE ASSESSEE IS, THUS ALLOWED. WE A RE NOT ADDRESSING THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS T HE MATTER IS BEING RESTORED BACK TO THE COMMISSIONER OF INCOME TAX (AP PEALS). 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MARCH,2014. SD/- SD/- ( T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 6 TH MARCH,2014 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR. ASSISTANT REGISTRAR ITAT,CHD.