Lalit Ghanyam Lalwani , Hyderabad V. Income Tax Officer, Ward-10(5), Hyderabad

ITA 2152/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1537 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Assessment Year: 2015-2016
• Appeal Filed On: 08-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DINESH PADUCHURI
• Assessee Lawyers: M.R. MOHAN RAO
• Keywords: Condonation of delay; Set aside
• Section: 271(1)(c); 143(3); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMEBR ITA NO. 2152 & 2153/HYD/2018 ASSESSMENT YEAR: 2015-16 LALIT GHANSYAM LALWANI, HYDERABAD 500 026 PAN AAHPL6432E VS. ITO WARD 10(5), HYDERABAD. (APPLICANT) (RES PONDENT) ASSESSEE BY : SHRI M.R. MOHAN RAO REVENUE BY : SHRI DINESH PADUCHURI DATE OF HEARING : 10-06-2019 DATE OF PRONOUNCEMENT : 14-06-2019 ORDER PER P. MADHAVI DEVI, J.M.: BOTH ARE ASSESSEES APPEALS FOR THE A.Y 2015-16 AGAINST THE ORDERS OF THE CIT(A)-6, HYDERABAD DATED 23.08.2018 AGAINST THE ASSESSMENT ORDER U/S 143(3) AND PENALTY ORDER U/S 271(1)(C) OF THE ACT RESPECTIVELY . ITA NO. 2153/HYD/2018 2. THIS APPEAL IS AGAINST THE CONFIRMATION BY THE C IT(A) PENALTY ORDER U/S 271(1)(C) OF THE ACT. THE ASSESS EE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE APPEAL FILED BEFORE CIT(A)-6 HYDERABAD A GAINST PENALTY ORDER U/S 271(1)(C) WAS DISMISSED IN LIMINE THAT IS CONSIDERING THE APPEAL WAS DELAYED. THAT IN FACT A ND IN LAW THERE WAS NO DELAY AS IT APPEARED DELAYED DUE TO 2 ITA.NO. 2152 & 2153/HYD/2018 LALIT GHANSYAM LALWANI, HYDERABAD. TYPING MISTAKE IN PRINTING THE DATE OF RECEIPT OF T HE ORDER APPEALED AGAINST. THE APPEAL BE ADMITTED FOR HEARI NG ACCORDINGLY TO DO COMPLETE JUSTICE TO THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ASSESSEE CONTENDS THAT THERE IS NO PROVI SION IN THE ACT TO DISMISS THE APPEAL IN LIMINE AS IT IS RE QUIRED TO PASS A SPEAKING ORDER AS PER S. 250(6) OF THE ACT . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE ORDER IS PASSED BY A.O UNDER S. 271(1)(C ) OF THE ACT R.W.S 254 OF THE ACT. THE SHOW CAUSE NOTICE U/ S 274 DATED 29.09.2017 INITIATIONS IS ON ONE LIMB OF CONCEALMENT BUT THE PENALTY ORDER IS PASSED WITHO UT ANY SUCH LIMB. THE ASSESSEE IS ENTITLED TO BE ALLOWED ON MERITS ALSO. THE PENALTY LEVIED WITHOUT SANCTION OF LAW B E CANCELLED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE PENALTY LEVIED IS ALSO ILLEGAL AND WITHO UT JURISDICTION AS ASSESSMENT HAS NOT ATTAINED FINALIT Y. THE APPEAL IS PENDING BEFORE TRIBUNAL. THE LEVY OF PEN ALTY IS PREMATURE. IT BE CANCELLED. 5. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY ORDER WAS PASSED ON 20.03.2018 AND WHILE FI LING THE APPEAL BEFORE THE CIT(A) THE ASSESSEE HAD, BY M ISTAKE, STATED IN FORM NO 35 THAT THE ORDER WAS ALSO SERV ED ON HIM ON 20.03.2018. HE SUBMITTED THAT THE CIT(A), W HILE CONSIDERING THE APPEAL HAS OBSERVED THAT THE APPEAL WAS BARRED BY FOUR DAYS, AND THEREFORE A DEFECT NOTICE WAS GIVEN TO HIM. HE SUBMITTED THAT IN RESPONSE TO THE SAME, THE ASSESSEE HAD REPLIED THAT BY MISTAKE THE SERVIC E OF ORDER WAS MENTIONED AS 20.03.2018, WHEREAS THE ORDE R WAS SERVED ON HIM ONLY ON 28.03.2018 AND THE SAME MAY B E CONSIDERED. THE CIT(A), HOWEVER, REFUSED TO CONSID ER THE 3 ITA.NO. 2152 & 2153/HYD/2018 LALIT GHANSYAM LALWANI, HYDERABAD. SAME AND HELD THAT THE ASSESSEE HAS NOT FILED AN APPLICATION FOR CONDONATION OF DELAY AND THEREFORE, THE DAY OF FOUR DAYS CANNOT BE CONDONED. HE ACCORDINGLY DISMISSED THE APPEAL IN LIMINE. AGGRIEVED, THE ASS ESSEE IS IN SECOND APPEAL BEFORE US. 4. THE LD. DR WAS ALSO HEARD AND ON PERUSAL OF MATE RIAL ON RECORD, WE FIND THAT THOUGH THE ASSESSEE HAS MEN TIONED IN FORM 35 THAT THE PENALTY ORDER DATED 20.03.201 8 HAS BEEN SERVED ON HIM ON 20.03.2018 ITSELF, HE HAS SUBSEQUENTLY FILED A LETTER EXPLAINING THAT THE ORD ER HAS BEEN SERVED ON HIM ON 28.03.2018. IN OUR OPINION, THE CIT(A) OUGHT TO HAVE CONSIDERED THE SAME, AND AFTER VERIFICATION, IF IT IS FOUND THAT THE ORDER HAS BEE N SERVED ON THE ASSESSEE ON 28.03.2018, THEN HE OUGHT TO HAVE DISPOSED OF THE APPEAL ON MERITS. THE LD. DR HAD SUBMITTED THAT ON VERIFICATION, IT WAS FOUND THAT T HE PENALTY ORDER WAS DISPATCHED BY POST ON 20.03.2018, BUT THERE IS NO PROOF ON RECORD OF SERVICE OF NOTICE. THEREFORE, WE ARE OF THE OPINION THAT THE BENEFIT OF DOUBT HAS BE GIVEN TO THE ASSESSEE BECAUSE BY POST THE ORDER COPY COUL D NOT HAVE BEEN SERVED ON THE VERY SAME DAY ON WHICH IT W AS DISPATCHED. THEREFORE, WE DEEM IT FIT AND PROPER T O REMIT THE APPEAL TO THE FILE OF THE CIT(A) WITH A DIRECTI ON TO CONSIDER THE APPEAL ONLY ON MERITS. ACCORDINGLY, T HE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 2150/HYD/2018 5. IN THIS APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) HAS DISMISSED THE ASSESSEES APPEAL IN LIMINE 4 ITA.NO. 2152 & 2153/HYD/2018 LALIT GHANSYAM LALWANI, HYDERABAD. WITHOUT CONDONING THE DELAY ON THE GROUND THAT NONE - APPEARED FOR THE ASSESSEE. HE PRAYED FOR REMAND TO THE FILE OF THE CIT(A) FOR A DECISION ON MERITS. 6. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF TH E MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAD R ECEIVED THE NOTICE FOR HEARING OF THE CASE ON 30.07.2018. THEREAFTER HAD FILED AN APPLICATION FOR ADJOURNMENT . HOWEVER, THE CIT(A) HAS IGNORED THIS ADJOURNMENT APPLICATION AND HOLDING THAT THE ASSESSEE HAS NOT A PPEARED EITHER BY HIMSELF OR THROUGH HIS REPRESENTATIVE, HA S DISMISSED THE APPEAL FOR NONE-PROSECUTION AND ALSO REFUSED TO CONDONE THE DELAY IN FILING OF THE APPEAL. WE A RE OF THE OPINION THAT THE CIT(A) OUGHT TO HAVE CONSIDERED TH E APPLICATION FOR ADJOURNMENT FILED BY THE ASSESSEE A ND OUGHT NOT TO HAVE DISMISSED THE APPEAL FOR NONE- APPEARANCE OF THE ASSESSEE. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ISSUE TO THE FILE OF THE CI T(A) WITH A DIRECTION TO DISPOSE OF THE APPEAL ON MERITS OF BOT H THE CONDONATION OF THE DELAY AND ALSO THE MERITS OF THE ADDITIONS MADE BY THE A.O, PARTICULARLY SINCE THE A PPEAL WAS FILED ON 02.03.2018 AND THE DEFECT NOTICE ISSUE D BY THE CIT(A) IS ALLEGEDLY NOT SERVED ON THE ASSESSEE. TH EREFORE, WE DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO CONSIDER THE ASSESSE ES APPLICATION FOR CONDONATION OF DELAY AND TO CONSIDE R THE APPEAL ON MERITS IF THE DELAY IS CONDONED. ACCORDI NGLY, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR ST ATISTICAL PURPOSES. 5 ITA.NO. 2152 & 2153/HYD/2018 LALIT GHANSYAM LALWANI, HYDERABAD. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019 SD/- SD/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED:14 TH JUNE, 2019 KRK/VINODAN 1) LALIT GHANSYAM LALWANI, 102, MARUTI VILLA, GREEN APARTMENTS, VIKRAMPURI, HYDERABAD 500 026 2) ITO, WARD 10(5), HYDERABAD. 3) CIT(A)-6, HYDERABAD. 4) PR.CIT-6, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 6) GUARD FILE.