Selviammal Sivalingam, CHENNAI V. ITO Non Corporate Ward 6(5), CHENNAI

ITA 2696/CHNY/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1574 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 09-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS S VIJAYAPRABHAJCITD R

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2696/CHNY./2017 / ASSESSMENT YEAR : 2007-08 SMT.SELVIAMMAL SIVALINGAM , NO.3,KAILASH MUDALI STREET, TONDIARPET,CHENNAI 600 081. VS. INCOME TAX OFFICER, NON CORPORATE WARD-6(5), CHENNAI. [PAN AAIPS 2137 G ] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : MR.K.MEENAKSHISUNDARAM, INCOME TAX PRACTITIONER $% ! ' # /RESPONDENT BY : MRS.S.VIJAYAPRABHA,JCIT,D.R & ' ' () / DATE OF HEARING : 10 - 0 9 - 201 8 * ' () / DATE OF PRONOUNCEMENT : 10 - 0 9 - 201 8 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-5, CHENNA I IN APPEAL NO.395/CIT(A)-5/2013-14 DATED 20.09.2017 FOR THE AS SESSMENT YEAR 2007-08 AGAINST CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. ITA NO.2696/CHNY/2017 :- 2 -: 2. MR.K.MEENAKSHI SUNDARAM REPRESENTED ON BEHALF OF THE ASSESSEE, AND MRS.S.VIJAYAPRABHA REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY LD.A.R THAT THE ASSESSMENT ORDER IN THE ASSESSEES CASE WAS COMPLETED ON 30.12.2009 AND THE PENALTY ORDER U/S. 271(1)(C) OF THE ACT CAME TO BE PASSED ON 29. 08.2011. IT WAS A SUBMISSION THAT THE PENALTY ORDER U/S. 271(1)(C) OF THE ACT DATED 29.08.2011 HAD NOT BEEN RECEIVED BY THE ASSESSEE. CONSEQUENTLY, THE ASSESSEE HAD OBTAINED THE TRUE COPY OF THE SAID ORD ER ON 03.09.2013 AND THE APPEAL WAS FILED ON 07.10.2013 WITH A DELAY OF FOUR DAYS FOR WHICH THE ASSESSEE HAD FILED NECESSARY PETITION FOR CONDONATION OF DELAY. IT WAS A SUBMISSION THAT LD.CIT(A) HELD THA T BELATEDLY FILING OF THE APPEAL BY 735 DAYS WAS NOT CONDONED AND CONSEQ UENTLY, DISMISSED THE ASSESSEES APPEAL IN LIMINIE ON ACCOUNT OF LIMITATION. LD.A.R DREW OUR ATTENTION TO PARA 5.3 OF THE CIT(A) S ORDER TO SUBMIT THAT THERE IS NO EVIDENCE OF SERVICE OF THE ORDER O F PENALTY ON THE ASSESSEE AS HAS BEEN MENTIONED. IT WAS A PRAYER THA T THE DELAY IN FILING OF THE APPEAL BEFORE THE LD.CIT(A) MAY BE CO NDONED AND THE APPEAL MAY BE RESTORED TO THE FILE OF LD.CIT(A) FOR ADJUDICATION ON MERITS. ITA NO.2696/CHNY/2017 :- 3 -: 4. IN REPLY, LD.D.R VEHEMENTLY OPPOSED THE SUBMISS ION OF LD.A.R. IT WAS A SUBMISSION THAT THE DELAY IN FILI NG OF THE APPEAL WAS 735 DAYS, WHICH WAS NOT EXPLAINED BY THE ASSESSEE. IT WAS A SUBMISSION THAT THE ORDER OF THE CIT(APPEALS) IS LI ABLE TO BE CONFIRMED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE ORDER OF THE CIT(APPEALS) SHOWS THAT IN PARA 5.1 O F CIT(A)S ORDER, HE HAS EXTRACTED SUBMISSIONS OF THE ASSESSEE THAT THE ORDER OF LEVYING PENALTY HAD NOT BEEN SERVED ON THE ASSESSEE AND THA T THE SAME WAS RECEIVED ONLY ON 03.09.2013. PERUSAL OF PARA 5.3 OF CIT(A)S ORDER SHOWS THAT IN THE REMAND REPORT, THE LD. ASSESSING OFFICER HAS SPECIFICALLY MENTIONED THAT THE DISPATCH REGISTER I S NOT TRACEABLE. HOWEVER, THE DISPATCH DATE TO THE ASSESSEES ADDRES S IS NOTED AS 30.08.2011 ON ACCOUNT OF THE DISPATCHERS SIGNATURE ON THE LAST PAGE OF PENALTY ORDER. ADMITTEDLY, THE DISPATCH REGISTE R BEING NOT OBTAINABLE, MORE SO NOT TRACEABLE, THERE IS NO EVID ENCE TO SHOW THE SERVICE OF THE PENALTY ORDER ON THE ASSESSEE. IN AN Y CASE, THE ASSESSEE WOULD NOT HAVE GAINED ANY BENEFIT BY NOT APPEALING AGAINST THE PENALTY ORDER HAD IT BEEN SERVED ON THE ASSESSEE. T HIS BEING SO, WE ARE OF THE VIEW THAT THE DELAY IN FILING OF THE APP EAL BY THE ASSESSEE BEFORE THE LD.CIT(A) HAS BEEN EXPLAINED AND THE DEL AY IS LIABLE TO BE CONDONED AND WE DO SO. IN THESE CIRCUMSTANCES, THE DELAY IN FILING OF ITA NO.2696/CHNY/2017 :- 4 -: THE APPEAL BEFORE THE LD.CIT(A) IS CONDONED AND T HE ISSUES IN THE APPEAL ARE RESTORED TO THE FILE OF LD.CIT(A) FOR AD JUDICATION ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 10 TH SEPTEMBER, 2018, AT CHENNAI. SD/ - SD/ - ( . ) (A.MOHAN ALANKAMONY) ! '# / ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ '# / JUDICIAL MEMBER - ' / CHENNAI . / DATED: 10 TH SEPTEMBER, 2018. K S SUNDARAM / ' $(01 2 1( / COPY TO: 1 . ! / APPELLANT 4. & 3( / CIT 2. $% ! / RESPONDENT 5. 145 $(6 / DR 3. & 3( () / CIT(A) 6. 57 8' / GF