Rakesh Verma, Kolkata V. I.T.O., Ward-38(3), Kolkata, Kolkata

ITA 2464/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4521 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-10-2013
• Court: TRIBUNAL
• Assessee Lawyers: S D VERMA
• Keywords: Condonation of delay
• Section: 144

Judgement Text

ITA NO. 2464/K/13 RAKESH VERMA1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2464/KOL/ 2013 ASSESSMENT YEAR: 2009-2010 RAKESH VERMA, ............... ................APPELLANT 101, GOURI NATH SHASTRI SARANI, GROUND FLOOR, KOLKATA-700 055 [PAN: ADYPV 6891P] -VS.- INCOME TAX OFFICER, .............. ........RESPONDENT WARD-38-(3), KOLKATA, 18, RABINDRA SARANI, PODDAR COURT KOLKATA APPEARANCES BY: SHRI S.D.VERMA, ADVOCATE., FOR THE ASSESSEE SHRI SALLONGYADEN, ADDL.CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : 23-05- 2016 DATE OF PRONOUNCING THE ORDER : 27 -07-2016 O R D E R PER SHRI S.S. VISWANETHRA RAVI :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXIV, KOLKA TA DATED 04.05.2012 FOR THE ASSESSMENT YEAR 2009-10 ON THE F OLLOWING GROUNDS:- ITA NO. 2464/K/13 RAKESH VERMA2 2. THE ONLY ISSUE IN THIS APPEAL TO BE DECIDED IS A S TO WHETHER THE CIT-A JUSTIFIED IN DISMISSING THE PETITION FOR CONDONATIO N OF DELAY IN FILING FIRST APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE A.Y . 2009-10 ON 03.06.2009 DECLARING A TOTAL INCOME AT RS. 1,54,362/-. THE AO COULD NOT SERVE NOTICE U/S. 143(2) OF THE ACT UPON THE ASSESSEE EITHER BY SENDI NG DEPARTMENTAL STAFF MEMBERS OR BY REGISTERED POST. THEREAFTER THE NOTIC E WAS SERVED BY AFFIXATION ON 30-09-2010 ON THE PREMISES OF THE ASSESSEE AND T HE PROCEDURE FOR AFFIXATION OF NOTICE WAS COMPLIED AND THE ASSESSMENT WAS COMPL ETED EXPARTE U/S 144 OF THE ACT DETERMINING THE TOTAL INCOME AT RS.27,58,31 1/-. 4. AS AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PR EFERRED AN APPEAL BEFORE THE CIT-A WITH DELAY OF 82 DAYS, WHILE CONSI DERING THE PETITION FOR DELAY CONDONATION, THE CIT-A FOUND THE REASONS AS S UBMITTED BY THE ASSESSEE NOT SATISFACTORY AND DISMISSED THE APPEAL IN LIMINE , THE OBSERVATIONS OF WHICH REPRODUCED AS UNDER: 2.2 THE SUBMISSION OF THE APPELLANT REGARDING THE CONDONATION OF DELAY IS CONSIDERED BUT NOT FOUND TE NABLE. THE A/R IN THE FORM NO 35 MENTIONED THE DATE OF SERVICE OF DEMAND NOTICE AND ASSESSMENT ORDER ON 4.5.12 AND 16.4.2012 . THE I.T.O FILED THE DOCUMENT OF SERVICE FROM WHICH I FOUND TH AT THE DEMAND NOTICE AND ASSESSMENT ORDER WAS SERVED ON TH E APPELLANT ON 01.03.2012 BY AFFIXATION. THESE FACTS ESTABLISHED THAT THE APPELLANT MISLEAD THE DEPARTMENT NOT SHOWI NG CORRECT DATE OF SERVICE OF DEMAND NOTICE AND ASSESSMENT ORD ER. THE APPELLANT ALSO NOT PRAYED AND CONDONATION APPLICATI ON AT THE TIME OF FILING THE APPEAL. NOW THE APPELLANT FILED THE SUBMISSION WHICH IS NOT CORRECT. THE FACTS, THEREFORE, SHOW THAT THE APPELLANT SIMPL Y DID NOT BOTHER OR ATTACHED ANY IMPORTANCE TO FILING OF APPE AL IN TIME. ITA NO. 2464/K/13 RAKESH VERMA3 ON THE BASIS OF THE ABOVE FACTS, IT IS HELD THAT TH E ASSESSEE PRESENTED THE APPEAL 82 (EIGHTY TWO) DAYS BEYOND TH E DATE OF LIMITATION SPECIFIED IN SUB-SECTION (2) OF SECTION 249 OF THE ACT, WITHOUT SUFFICIENT CAUSE, THEREFORE, THE DELAY IN F ILING THE APPEAL IS NOT CONDONED. THEREFORE, THE APPEAL IS NOT CONDO NED. THEREFORE, THE APPEAL IS NOT MAINTAINABLE. 2.3 AS A RESULT, THE APPEAL STANDS AS DISMISSED. 5. IN THIS APPEAL, THE LD. AR SUBMITS THAT THE CIT- A DID NOT AFFORD AN OPPORTUNITY TO THE ASSESSEE TO DEFEND EXPARTE ASSES SMENT MADE BY THE AO U/SEC 144 OF THE ACT AND DID NOT APPRECIATE THE REA SONS STATED IN THE SUBMISSIONS MADE BEFORE THE CIT-A THAT THE ASSESSEE WAS OUT OF CALCUTTA DUE TO FINANCIAL CRISES AND WENT TO HIS NATIVE PLACE IN RAJASTHAN AND ALL THE NOTICES WERE SERVED BY AFFIXATION AND ASSESSEE DID NOT REC EIVE THE NOTICES AND NOT ACCEPTING THE SAME AS GENUINE IS AGAINST TO ESTABLI SHED LAW AND PRAYED TO REMIT THE CASE TO CIT-A FOR FRESH CONSIDERATION OF APPEAL . THE LD. DR RELIED ON ORDER OF CIT-A. 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT FROM THE ASSESSMENT ORDER THE NOTICE U /SEC 143(2) COULD NOT BE SERVED, BUT, HOWEVER SERVED BY AFFIXATION RESULTING THE COMPLETION OF ASSESSMENT IN THE ABSENCE OF ASSESSEE. THE FINDING OF THE CIT-WAS THAT THE ASSESSEE DID NOT FILE ANY PETITION TO CONDONE THE D ELAY IN FILING THE APPEAL AND THE ASSESSEE MENTIONED WRONG DATES OF SERVICE OF DE MAND NOTICE AND ASSESSMENT ORDER IN FORM NO-35 AND ALSO FOUND THAT THE DEMAND NOTICE AND ASSESSMENT ORDER WERE SERVED BY AFFIXATION. THE CAS E OF THE ASSESSEE WAS THAT HE WAS OUT OF CALCUTTA DUE TO FINANCIAL CRISES AND STAYED IN HIS NATIVE PLACE IN ITA NO. 2464/K/13 RAKESH VERMA4 STATE OF RAJASTHAN. BUT, HOWEVER, IN THE INTEREST O F THE JUSTICE, WE REMAND THE APPEAL TO THE FILE OF CIT-A FOR FRESH ADJUDICATION TREATING THE REASONS AS STATED IN THE WRITTEN SUBMISSION FILED IN SUPPORT OF COND ONATION OF DELAY AS REASONABLE BY AFFORDING AN OPPORTUNITY TO ASSESSEE AND WE ALSO DIRECT THE ASSESSEE TO PRODUCE ANY EVIDENCE, IF ANY, NECESSARY FOR THE FAIR ADJUDICATION OF THE CASE AND WE ALSO MAKE IT CLEAR THAT THE ASSESSE E SHALL NOT SEEK ANY FURTHER ADJOURNMENTS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED THIS ORDER IS PRONOUNCED IN OPEN COURT ON 27 /0 7 /2016 SD/- P.M JAGTAP ACCOUNTANT MEMBER SD/- S.S. VISWANETHRA RAVI J JUDICIAL MEMBER DATE 27 /07/2016 ITA NO. 2464/K/13 RAKESH VERMA5 COPY OF THE ORDER FORWARDED TO 1.. THE APPELLANT/ASSESSEE : RAKESH VERMA, 101, GOURI NATH SHASTRI SARANI, GROUND FLOOR, KOLKATA-700 055 2 THE RESPONDENT/DEPARTMENT: INCOME TAX OFFICER, WARD-38-(3), KOLKATA, 18, RABINDRA SARANI, PODDAR C OURT KOLKATA (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA ** PRADIP SPS