ASIT C. MEHTA INVESTMENT INTERMEDIATES LIMITED , MUMBAI V. DCIT 4(1)(1), MUMBAI

ITA 3550/MUM/2016

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9960 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 19-05-2016
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

आयकर अपीलीय अधिकरण “एच” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H”, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 3550/MUM/2016 : (A.Y : 2001-02) Pankhi Devi Jain 13-A Ardeshir Dadi Cross Lane, Durgadass Building 1 st Floor, Mumbai – 400 004 PAN : ADAPJ5348P (अपीलार्थी / Appellant) Vs. DCIT (OSD-II) CR-7, Mumbai (प्रत्यर्थी / Respondent) अपीलार्थी की ओर से / Appellant by : None प्रत्यर्थी की ओर से / Respondent by : Shri B.S.Bist सुनवाई की तारीख / Date of Hearing : 07/03/2017 घोषणा की तारीख Date of Pronouncement : 07/03/2017 आदेश / O R D E R PER C.N.PRASAD (J.M.) : This appeal is filed by the Assessee against the order of the Ld. CIT (Appeals)-52, Mumbai dated 05.02.2016 for the assessment year 2001-02 in dismissing the appeal on limitation without condoning the delay. 2 Smt Pankhi Devi Jain ITA No.3350/Mum/2016, A.Y.2001-02 2. Inspite of issue of notice to the Assessee fixing the hearing on 07.03.2017 none appeared nor any adjournment is moved. Therefore we proceed to dispose off this appeal on hearing the Ld. DR. 3. On perusal of the Ld. CIT (Appeals) order, we find that the appeal of the Assessee was dismissed by the Ld. CIT (Appeals) without condoning the delay in filing the appeal before him. The Assessee filed appeal against the penalty order dated 22.03.2007 passed u/s 271 (1)(c) of the Act. before the Ld. CIT (Appeals) on 15.07.2013. Therefore Ld. CIT (Appeals) observed that there is delay of about six years. The contention of the Assessee was that the penalty order was received by him only on 17.06.2013 and appeal was filed on 15.07.2013 and therefore there was no delay at all. An affidavit was also filed by the Assessee reiterating the fact of receipt of the penalty order on 17.06.2013 and it appears that it was also submitted before the Ld. CIT (Appeals) that notice of demand was still lying in the file of the Assessing Officer unserved and therefore it was submitted that there was no intentional and deliberate delay in filing the appeal. However, the Ld. CIT (Appeals) dismissed the appeal of the Assessee without condoning the delay observing as under : “6. I have considered the facts of the case and submissions and contentions of the assessee . As per provisions of sec.249(2) of the Act, an appeal, before the Commissioner of Income Tax (appeal) shall be filed within thirty days of receipt of the order. The Commissioner of Income Tax (appeal) however may admit an appeal after the expiry of said period of thirty days, if he is satisfied that the appellant had sufficient cause for not presenting it within that period. It appears that the impugned penalty order was passed by the A.O. as on 22-03-2007. However the appeal in the present 3 Smt Pankhi Devi Jain ITA No.3350/Mum/2016, A.Y.2001-02 case has been filed only on 16-072013, after a lapse of 6 years of passing the penalty order. Thus, there is an inordinate delay in filing this appeal. The assessee has claimed that thl. order could be received by her only on 17-06-2013 and therefore the present appeal has been filed in time. Secondly the assessee has also argued that there was reasonable and sufficient cause for 4lelay in the matter. However, it appears that this order was sent to the last known address of the assessee namely, 13-A, Ardeshir daday X Lane, Durgadas Bldg, 1st floor, R.No.23, Mumbai 400 004, immediate after passing of the order. Therefore, as far as the department is concerned or the assessing Officer is concerned, this order is deemed to have been served upon the assessee.” 4. As could be seen from the above observations of the Ld. CIT (Appeals), the Ld. CIT (Appeals) is presuming or rather deeming that the penalty order was served on the Assessee immediately after its passing by Assessing Officer as it was sent to the last known address of the Assessee. The Ld.CIT (Appeals) assuming that the penalty order was served on the Assessee immediately after passing of the penalty order and he was of the assumption that since the penalty order was passed on 22.03.2007 and since appeal of the assessee was filed by the Assessee on 15.07.2013, there was a delay of six years in filing the appeal. The contention of the Assessee that the penalty order was served only on 17.06.2013 and therefore the appeal was filed on 15.07.2013 within the stipulated period of 30 days is not proved to be wrong by the Ld. CIT (Appeals). Without examining this aspect of the matter as to whether the penalty order was served on 17.06.2013 or immediately after passing of the penalty order by the Assessing Officer on 22.03.2007, the Ld. CIT (Appeals) assuming / deeming that the penalty order was served as it 4 Smt Pankhi Devi Jain ITA No.3350/Mum/2016, A.Y.2001-02 was sent to the last known address of the Assessee, which is totally wrong. Since the Ld. CIT (Appeals) did not examine this aspect of the matter, we restore the file to Ld. CIT (Appeals) with a direction to first find out when was the penalty order served on the Assessee and is there any delay at all in filing the appeal in view of the contention of the Assessee that the penalty order was served only on 17.06.2013 and not prior to that date. If there is no delay in filing the appeal, the question of dismissing the appeal for want of plausible reason for condonation does not arise at all. Thus, we restore this appeal to the file of the Ld. CIT (Appeals) to decide the condonation keeping in view one above observations and after giving adequate opportunity of being heard to the Assessee. 5. In the result, appeal of the Assessee is allowed for statistical purpose. Order pronounced in the open court on the 7 th day of March 2017. Sd/- Sd/- RAMIT KOCHAR C.N.PRASAD लेखा सदस्य / न्याधयक सदस्य / ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई / Mumbai; दिनाुंक / Dated 07/03/2017 LR, SPS 5 Smt Pankhi Devi Jain ITA No.3350/Mum/2016, A.Y.2001-02 आदेश की प्रधिधलधप अग्रेधिि / Copy of the Order forwarded to : आदेशान सार/ BY ORDER, सहायक पुंजीकार (Asstt. Registrar) आयकर अपीलीय अधिकरण, मुुंबई / ITAT, Mum 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A), Mumbai. 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. सत्यादपत प्रदत //True Copy//