Kalinga Autocentre Ltd, Bhubaneswar V. ACIT, Cuttack

ITA 381/CTK/2010

• Counselvise Citation: 38122114 RSA 2010
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-08-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 28-10-2010
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Keywords: Search and seizure; Opportunity of being heard

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 381 AND 382/CTK/2010 STAY PETITIONS NO.9 AND 10/CTK/2010 (ASSESSMENT YEARS 199 5 - 96 AND 1996 - 97) KALINGA AUTOCENTRE L TD.,PLOT N.168/169 (A), BAPUJI NAGAR, BHUBANESWAR 751 009 PAN: AAACK 7194 C VERSUS ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), CUTTACK. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: NONE FOR THE RESPONDENT SHRI A.BHATTACHARJEE, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THESE APPEALS AGAINST SEPARATE ORDERS BOTH DT.20.9.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEARS 1995 - 96 AND 1996 - 07. THE ASSESSEE HAS ALSO FILED PETITIONS FOR STAY OF RECOVERY OF THE DEMAND FOR THE BOTH THE AYS UNDER CONSIDERATION. THE APPEALS AND STAY PETITIONS ARE DISPOSED OF TOGETHER. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO HEAR THE APPEALS AND STAY PETITIONS E XPARTE QUA ASSESSEE AFTER HEARING THE LEARNED DR AND CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 3. IN BOTH THESE APPEALS, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER OF THE LEARNED CIT(A) IN DISMISSING THE APPEALS ON THE GROUND OF LIMITATION. THE ASS ESSEE HAS ALSO FILED AN ADDITIONAL GROUND URGING THAT THE IMPUGNED ORDERS PASSED BY THE ASSESSING OFFICER MAY BE CONSIDERED AS VOID AB INITO AND BAD IN LAW DUE TO THE FACT THAT THE SAID ASSESSMENT ORDER ALONG WITH THE DEMAND NOTICE WAS NOT DULY SERVED. 4. HAVING GONE THROUGH THE IMPUGNED ORDERS OF THE LEARNED CIT(A) IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LEARNED DR, WE FIND THAT THE ASSESSMENT ORDERS U/S.144/147 WERE PASSED ON 28.3.2002. THE LEARNED ITA NO.381 AND 382/CTK/2010 STAY PETITIONS NO.9 AND 10/CTK/2010 2 CIT (A) OBSERVED THAT THE APPEALS FILED WERE BELATEDLY BY 7 YEARS AND 228 DAYS. THE REASON FOR THE SAID DELAY, THE ASSESSEE EXPLAINED BEFORE HIM THAT IT WAS DUE TO NON - RECEIPT OF THE ASSESSMENT ORDER BY THE ASSESSEE. THE DATE OF ORDER WAS 28.3.2002 BUT UNFORTUNATELY, DUE TO CBI RAID AND OTHER FINANCIAL DIFFI CULTIES THE ASSESSEES OFFICE AT CUTTACK WAS ALMOST DEFUNCT/CLOSED SINCE THE YEAR 2000. AS A RESULT OF WHICH , NEITHER PROPER COMPLIANCE COULD BE MADE AT THE TIME OF ASSESSMENT NOR THE ASSESSMENT PROCEEDING ORDER COULD BE RECEIVED BY THE ASSESSEE IN TIME. T HERE WAS NO OTHER REMINDER BY THE INCOME - TAX DEPARTMENT DURING THE YEAR 2002 TO 2009 INTIMATING THE ORDER AND DEMAND. FINALLY, AFTER BEING INTIMATED REGARDING THE OUTSTANDING DEMAND BY THE DEPARTMENT ON 31.8.2009, THE ASSESSEE COULD MANAGE TO RECEIVE A CER TIFIED COPY OF THE ASSESSMENT ORDER 5.12.2009, THE ASSESSEE FILED THE APPEALS ALONG WITH CONDONATION PETITION. WE FIND THAT THE LEARNED CIT(A) CONSIDERED SUCH EXPLANATION OF THE ASSESSEE DOES NOT INDICATE SUFFICIENT CAUSE SO AS TO CONDONE THE INORDINATE DE LAY AND THEREFORE, HE DISMISSED THE APPEALS FILED BEFORE HIM AS UN - ADMITTED. WHILE DO ING SO, THE LEARNED CIT(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER AS TO THE DATE OF SERVICE OF ASSESSMENT ORDERS AND DEMAND NOTICES, IN RESPONSE TO WHICH THE ASSESSING OFFICER STATED THAT AS PER THE NOTING ON THE BODY OF THE ORDERS AND DNS , THE SAME WERE ISSUED BY POST ON 1.4.2002. IT HAS NOT BEEN INDICATED BY THE ASSESSING OFFICER AS TO ON WHAT DATE THE ASSESSMENT ORDERS AND DEMAND NOTICES WERE SERVED ON THE ASSESSEE. WE ARE OF THE VIEW THAT MERE ISSUANCE OF ASSESSMENT ORDERS/DEMAND NOTICES BY POST ON A PARTICULAR DATE CANNOT BE A GROUND TO HOLD THAT THE ASSESSMENT ORDERS/DEMAND NOTICES WERE SERVED ON THE ASSESSEE PARTICULARLY WHEN IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT DUE TO CBI RAID AND OTHER FINANCIAL DIFFICULTIES THE ASSESSEES OFFICE AT CUTTACK WAS ALMOST DEFUNCT/CLOSED SINCE ITA NO.381 AND 382/CTK/2010 STAY PETITIONS NO.9 AND 10/CTK/2010 3 2000. THESE FACTS HAVE NOT BEEN CONSIDERED BY THE LEARNED CIT(A) IN THEIR PROPER PERCEPTIVE. THER EFORE, RECKONING OF LIMITATION FOR FILING THE APPEALS FROM THE DATE OF ISSUE OF ASSESSMENT ORDERS/DEMAND NOTICES, WHICH HAVE NOT EVIDENTLY BEEN SERVED ON THE ASSESSEE, IS NOT JUSTIFIED. CONSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AS SUFFICIENT CAUS E WHICH PREVENTED FROM FILING THE APPEALS BEFORE THE CIT(A) IN TIME, W E CONDONE THE DELAY AND RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR DECIDING THE APPEALS ON MERITS AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. THE ASSESS EE HAS FILED ADDITIONAL GROUND THAT THE ORDERS PASSED BY THE ASSESSING OFFICER MAY BE CONSIDERED AS VOID AB INITIO AND BAD IN LAW DUE TO THE FACT THAT THE SAID ASSESSMENT ORDERS ALONG WITH THE DEMAND NOTICES WERE NOT DULY SERVED. SINCE, WE HAVE RESTORED T HE APPEALS TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATION AFRESH ON MERITS, IT WILL NOT BE PROPER TO GIVE ANY FINDING ON THE ADDITIONAL GROUND AS RAISED BY THE ASSESSEE BEFORE US, WHICH WE LEFT TO BE CONSIDERED BY THE LEARNED CIT(A) WHILE DECIDING THE APPEALS AFRESH AS DIRECTED. 6. SINCE WE HAVE DISPOSED OF THE APPEAL IN THE MANNER AS STATED IN THE FOREGOING PARAGRAPHS, THE STAY PETITIONS FILED BY THE ASSESSEE ARE DISMISSED. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPO SES AND THE STAY PETITIONS ARE DISMISSED. PRONOUNCED IN OPEN COURT ON DT. 12.08.2011 S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 12.08.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. ITA NO.381 AND 382/CTK/2010 STAY PETITIONS NO.9 AND 10/CTK/2010 4 CO PY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: KALINGA AUTOCENTRE LGTD.,PLOT N.168/169 (A), BAPUJI NAGAR, BHUBANESWAR 751 009 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6 . GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.