SHRI MARK LEE, JAIPUR V. INCOME TAX OFFICER, WARD-7-1, JAIPUR

ITA 215/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8569 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 18-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: H R AGARWAL; A NKIT AGARWAL CA DH VK
• Keywords: Salary income; Reasonable cause; Condonation of delay; TDS; Set aside
• Section: 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 215, 216, 217 & 218/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2008-09 SH. MARK LEE B-85, TRIVENI NAGAR, GOPAL PURA BYE PASS, JAIPUR 302017 CUKE VS. THE ITO, WARD-7(1), JAIPUR TOLFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAFPL0551L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. H. R. AGARWAL (CA) & SH. A NKIT AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 14/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 15/07/2020 VKNS'K@ ORDER PER BENCH: THESE ARE FOUR APPEALS FILED BY THE ASSESSEE AGAIN ST THE RESPECTIVE ORDERS OF LD. CIT(A)-3, JAIPUR DATED 26. 12.2018 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE HEARING OF THE MATTER WAS SCHEDULED THROUGH VIDEO CONFERENCING IN VIEW OF ONGOING COVID-19 PANDEMIC S ITUATION IN THE COUNTRY. IT IS NOTED THAT ALL THESE APPEALS HAVE BE EN DISMISSED BY THE LD. CIT(A) AT THE ADMISSION STAGE REJECTING THE PET ITION OF THE ASSESSEE SEEKING CONDONATION OF DELAY IN FILING THE RESPECTI VE APPEALS. ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 2 3. DURING THE COURSE OF HEARING, THE LD. AR TAKEN U S THROUGH THE ASSESSEES PETITION SEEKING CONDONATION OF DELAY WH EREIN THE ASSESSEE HAS STATED THAT HE WAS RESIDING AT B-85, TRIVENI NA GAR, JAIPUR TILL 2008. THEREAFTER, HE SHIFTED TO DELHI NCR AND SUBSEQUENTL Y, HE RETURNED TO JAIPUR IN APRIL 2017. IT WAS FURTHER SUBMITTED THAT HE RECEIVED TELEPHONIC INTIMATION FROM THE OFFICE OF ITO, WARD 7(1), JAIPUR ON 18 TH OF AUGUST 2017 AND HE GOT TO KNOW ABOUT THE PENDING DEMANDS AGAINST HIM. HE MET THE CONCERNED ITO, WARD 7(1), JAIPUR AN D OBTAINED COPY OF THE DEMAND AND OTHER NOTICES FROM HIS OFFICE ON 22.08.2017 AND THEREAFTER, FILED THE APPEAL ON 15.09.2017. IT WAS SUBMITTED BY THE LD. AR THAT THERE WAS A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) DUE TO THE FACT THAT ASSESSEE HAD SHIFTED TO DELHI AND NOTICES AND ORDER WERE SENT AT THE JAIPUR ADDRE SS WHICH WERE NOT RECEIVED BY THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT IN THE PAN DATABASE, THE ASSESSEES DELHI ADDRESS HAS BEEN STA TED AND INSPITE OF SAID FACT BEING IN THE KNOWLEDGE OF THE ASSESSING O FFICER, NOTICES AND SUBSEQUENT ORDER WERE DISPATCHED AT THE JAIPUR ADDR ESS WHICH DUE TO NON-AVAILABILITY OF THE ASSESSEE AT JAIPUR ADDRESS REMAINED UNCOMPLIED WITH. IT WAS SUBMITTED THAT ONLY ON 18 TH OF AUGUST 2017, THE ASSESSEE FIRST CAME TO KNOW ABOUT THESE DEMAND NOTICES AND O RDERS AND HE IMMEDIATELY MET THE OFFICIAL OF THE ITO, WARD 7(1) AND ALL THE COPIES OF THE DEMAND NOTICES AND OTHER ORDERS WERE COLLECTED ON 22.08.2017. THEREAFTER, THE APPEAL WAS FILED ON 15.09.2017. IT WAS ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSEE DID NOT RECEIVE T HE ASSESSMENT ORDER SO PASSED BY THE ASSESSING OFFICER IN TIME AND HAD RECEIVED THE SAME ONLY ON 22.08.2017, THE LD. CIT(A) SHOULD HAVE APPR ECIATED THE SAID FACTS AND SHOULD HAVE CONDONED THE DELAY IN FILING THE PRESENT APPEAL. ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 3 HOWEVER, HE HAS SUMMARILY DISMISSED THE CONDONATION PETITION STATING THAT NO GENUINE CAUSE HAS BEEN SHOWN BY THE ASSESSE E WHICH PREVENT THE ASSESSEE TO FILE THE APPEAL IN TIME. 4. IT WAS FURTHER SUBMITTED BY THE LD AR THAT THE A DDITION HAS BEEN MADE BY THE ASSESSING OFFICER IN RESPECT OF CREDIT CARD EXPENSES AMOUNTING TO RS. 2,10,846/-. IT WAS SUBMITTED THAT THE SAID CREDIT CARD WAS A SBI CORPORATE CREDIT CARD ISSUED TO THE ASSES SEE AT THE RELEVANT POINT IN TIME WHEN HE WAS THE EMPLOYEE OF GENPACT I NDIA PVT. LTD. FOR MEETING OFFICIAL EXPENSES. ALL THESE EXPENSES INCUR RED THROUGH THE CREDIT CARD WERE FOR OFFICIAL PURPOSES AND PAYMENT HAVE BEEN MADE DIRECTLY BY THE ASSESSEES EMPLOYER I.E. GENPACT IN DIA PVT. LTD. TO SBI CREDIT CARD. FURTHER, GENPACT INDIA PVT. LTD. HAS A LSO ISSUED A CONFIRMATION LETTER REGARDING USES OF THE SBI CREDI T CARD. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO BASIS FOR MA KING THE ADDITION IN THE HANDS OF THE ASSESSEE IN RESPECT OF THE EXPENSE S INCURRED FOR OFFICIAL PURPOSES THROUGH THE CREDIT CARD. 5. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFI CER HAS ALSO BROUGHT TO TAX THE SALARY INCOME OF RS. 3,12,159/-. HOWEVER, THE ACTUAL SALARY FIGURE IS LOWER THAN THE SAID AMOUNT AND EVE N TDS CREDIT HAS NOT BEEN GRANTED BY THE ASSESSING OFFICER. IT WAS SUBMI TTED THAT FORM 16 ISSUED BY THE EMPLOYER, GENPACT INDIA PVT LTD SHOWS CLEARLY THE SALARY INCOME AND CORRESPONDING TDS WHICH SHOULD BE ALLOWE D TO THE ASSESSEE. ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 4 6. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE H AD REASONABLE CAUSE FOR THE DELAY IN FILING THE PRESENT APPEAL BE FORE THE LD. CIT(A) DUE TO NON-RECEIPT OF THE ORDER AND EVEN ON MERITS, THE RE IS NO BASIS FOR MAKING THE ADDITION IN THE HANDS OF THE ASSESSEE. I N LIGHT OF THE SAME, IT WAS SUBMITTED THAT THE ASSESSEE MAY BE GRANTED A N OPPORTUNITY TO REPRESENT HIS CASE ON MERITS AND THE MATTER MAY BE SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MERITS. 7. PER CONTRA, THE LD. DR SUBMITTED THAT IT IS A C ASE WHERE THE ASSESSMENT WAS COMPLETED U/S 147 R/W SECTION 144 OF THE ACT. IT WAS SUBMITTED THAT NOTICE U/S 148 WAS ISSUED BY ITO, WA RD 7(1), JAIPUR ON 16.03.2015 AND AS PER ASSESSEES OWN SUBMISSION, AT THAT POINT OF TIME, HE HAD SHIFTED BACK TO JAIPUR AND THEREFORE, THE CO NTENTION OF THE LD. AR THAT THE ASSESSEE WAS NOT AVAILABLE AT JAIPUR ADDRE SS TO RECEIVE NOTICES AND ALSO THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER WAS NOT RECEIVED CANNOT BE ACCEPTED. IT WAS SUBMITTED THAT IT IS A CASE WHERE THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME AND THE NOTICES AND SUBSEQUENT ORDER WERE DISPATCHED AT THE ADDRESS AVA ILABLE WITH THE ASSESSING OFFICER. ON MERITS, IT WAS SUBMITTED THA T SINCE THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICES ISSUED DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND GIVEN THAT THE CREDIT CA RD WAS ISSUED IN THE NAME OF THE ASSESSEE, THE ASSESSING OFFICER HAD NO OTHER OPTION BUT TO MAKE THE ADDITION TOWARDS THE UNEXPLAINED EXPEND ITURE AND PASSED THE ORDER U/S 144 OF THE ACT. IT WAS ACCORDINGLY S UBMITTED THAT THE LD. CIT(A) HAS RIGHTLY HELD THAT THERE WAS NO GENUINE C AUSE WHICH PREVENTED THE ASSESSEE TO FILE THE APPEAL IN TIME. ACCORDINGLY, THE ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 5 APPEAL WAS DISMISSED AT THE ADMISSION STAGE ITSELF. IT WAS ACCORDINGLY SUBMITTED THAT THE ACTION OF THE LD. CIT(A) MAY KIN DLY BE CONFIRMED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT OR DER U/S 147 READ WITH 144 WAS ISSUED BY THE ASSESSING OFFICER ON 05. 03.2016 IN ASSESSEES NAME HAVING PAN NO. AAFPL055IL WITH JAIP UR ADDRESS I.E, B- 85, TRIVENI NAGAR, JAIPUR. FURTHER, IN THE COMPUTAT ION FORM, DETAILING THE INCOME AND TAX LIABILITY, ATTACHED WITH ASSESSM ENT ORDER, THE ADDRESS OF THE ASSESSEE HAS BEEN STATED AS GURU NAN AK MARKET, NEW DELHI-110024. THEREFORE, THERE WERE TWO ADDRESSES O F THE ASSESSEE AVAILABLE WITH THE ASSESSING OFFICER. THE CONTENTIO N OF THE ASSESSEE IS THAT SINCE HE HAD SHIFTED TO DELHI, HE DIDNT RECEI VE THE NOTICES AND THE IMPUGNED ASSESSMENT ORDER DATED 5.03.2016 ADDRESSED AT THE JAIPUR ADDRESS AND ONCE, HE SHIFTED BACK TO JAIPUR IN APRI L 2017, HE GOT TO HEAR FROM THE ASSESSING OFFICER SOMETIME IN AUGUST 2017, HE COLLECTED THE NOTICES AND THE IMPUGNED ASSESSMENT ORDER AND F ILED THE APPEAL BEFORE THE LD CIT(A) IN SEPTEMBER 2017. FURTHER, TH E LD AR HAS STATED AT THE BAR THAT IN THE PAN DATABASE, THE NEW DELHI ADDRESS OF THE ASSESSEE HAS ONLY BEEN SHOWN. WE THEREFORE FIND THA T THE ASSESSEE SEEMS TO HAVE TWO ADDRESSES IN JAIPUR AS WELL AS IN NEW DELHI AND AT THE TIME OF ISSUE OF ASSESSMENT ORDER WHICH WAS DIS PATCHED AT THE JAIPUR ADDRESS, HE WAS NOT RESIDING AT THE JAIPUR A DDRESS AND FURTHER, IN THE DEPARTMENT PAN DATABASE, THE ASSESSEES DELHI A DDRESS HAS BEEN STATED. IT IS HOWEVER UNCLEAR WHETHER AT THE ASSESS EES JAIPUR ADDRESS, THE HOUSE WAS LOCKED OR ANYONE ELSE WAS RESIDING AN D IF YES, WHETHER THE ASSESSEE WAS INFORMED ABOUT THE ASSESSMENT ORDE R. IT IS ALSO ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 6 UNCLEAR WHETHER THE ASSESSMENT ORDER SO DISPATCHED BY THE ASSESSING OFFICER WAS DELIVERED OR RETURNED UNSERVED. AT THE SAME TIME, IT IS A SETTLED POSITION THAT ALL NOTICES AND COMMUNICATION SHOULD BE ADDRESSED TO THE ASSESSEE AT THE ADDRESS GIVEN IN THE DEPARTM ENT PAN DATABASE AND WHERE THERE IS A CHANGE, IT IS INCUMBENT ON THE ASSESSEE TO INFORM THE TAX DEPARTMENT AND SEEK NECESSARY MODIFICATION. IN THE INSTANT CASE, THE ASSESSEES DELHI ADDRESS WAS STATED IN TH E PAN DATABASE AND WHICH HAS NOT BEEN DISPUTED BY THE REVENUE. THEREF ORE, IN SUCH A SCENARIO, THE NOTICES AND OTHER COMMUNICATION SHOUL D HAVE BEEN ADDRESSED AT THE DELHI ADDRESS STATED IN THE PAN DA TABASE AND IN A SCENARIO, WHERE THE SAME IS RETURNED UNDELIVERED, T HEN RECOURSE CAN BE HAD BY SERVING THE SAME AT THE OTHER ADDRESS AVAILA BLE WITH THE ASSESSING OFFICER. IN LIGHT OF THE ABOVE, WE FIND THAT THERE IS A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL BEFORE THE LD CIT(A) WHERE THE ASSESSEE IS DISPUTING THE TIMELY RECEIPT OF THE ASSESSMENT ORDER. THEREFORE, IN THE INTEREST OF JUSTICE AND FA IR PLAY AND GIVEN THAT THE APPEAL HAS BEEN DISMISSED AT THE ADMISSION STAG E, WE HEREBY CONDONE THE DELAY IN FILING THE PRESENT APPEAL BEFO RE THE LD. CIT(A) AND THE MATTER IS SET ASIDE TO THE FILE OF LD. CIT(A) T O PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE. WE MAKE IT CLEAR THAT THE CONTENTIONS ON MERITS THOUGH ADVANCED BY THE LD. AR ARE NOT ADJUDI CATED UPON AND LEFT UPON AND THE ASSESSEE IS AT LIBERTY TO RAISE THE SA ID CONTENTIONS BEFORE LD. CIT(A) WHO SHALL CONSIDER THE SAME AFTER PROVID ING REASONABLE OPPORTUNITY TO THE ASSESSEE. 9. THE OTHER THREE APPEALS ARE AGAINST LEVY OF PEN ALTY U/S 271(1)(C), 271F AND 271(1)(B) WHEREIN WE FIND THAT UNDER SIMIL AR FACT PATTERN, ITA NO. 215, 216, 217 & 218/JP/2019 SH. MARK LEE, JAIPUR VS. ITO, WARD 7 (1), JAIPUR 7 THERE IS DELAY IN FILING THE APPEALS BEFORE THE LD CIT(A) WHO HAS DISMISSED THE APPEALS AT THE ADMISSION STAGE REJECT ING THE PETITION FOR CONDONATION OF DELAY. THEREFORE, FOLLOWING THE REA SONING AND DIRECTIONS CONTAINED IN THE AFORESAID QUANTUM MATTER, THE DELA Y IN FILING THESE APPEALS IS HEREBY CONDONED AND MATTER IS SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE ON SAME ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, ALL FOUR APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/07/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/07/2020. GANESH KUMAR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. MARK LEE, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 7(1), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 215, 216, 217 & 218/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR