M/s Daqisy Investment Pvt. Ltd., Ghaziabad V. DCIT, Ghaziabad

ITA 390/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7247 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-07-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 27-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: R K KAPOOR
• Keywords: Reasonable cause

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SMT SUCHITRA KAMBLE , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER I TA NO . 390/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 ) M/S. DAISY INVESTMENT PVT. LTD, MODI BHAWAN, MODI NAGAR, GHAZIABAD PAN:AABCD1827E VS. THE DCIT, CIRCLE - 1, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RK KAPOOR, CA REVENUE BY: SH. KK JAISWAL, DR DATE OF HEARING 12/07/ 2016 DATE OF PRONOUNCEMENT 09 / 0 9 /2016 O R D E R PER PRASHANT MAHARISHI , A . M . 1. THIS IS AN APPEAL FILED BY THE AGAINST THE ORDER OF THE LD CIT(A), GHAZIABAD, DATED 22.12.2015 FOR THE ASSESSMENT YEAR 2012 - 13. THE MAIN GROUND OF APPEAL RAISED BY THE ASSESSEE IS THAT THE LD CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AS THERE WAS DELAY IN FILING OF APPEAL BY ONE MONTH THE FIVE DAYS. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS OF THE APPELLANTS CASE IN DISMISSING THE APPEAL FILED BY THE ASSESSEE, AS NOT MAINTAINABLE U/S 249(2) OF THE INCOME TAX ACT. 2. THAT THE ORDER OF THE LD CIT(A) IN HOLDING THAT THE APPEAL IS FILED B EYOND THE PRESCRIBED PERIOD, IS BAD IN LAW. 3. THAT WITHOUT PREJUDICE, THE LD CIT(A) HAS ERRED IN LAW IN NOT CONDONING THE DELAY IN FILING THE APPEAL, THE REASONS FOR WHICH WERE EXPLAINED TO THE LD CIT(A). 4. THAT THE LD CIT(A) HAS ERRED IN DISMISSING THE APPEAL ON TECHNICAL GROUND, ALTHOUGH, ON MERITS NO ADDITIONS WERE LIABLE TO BE MADE BY THE AO. 5. THAT THE ADDITION OF RS. 28532145/ - MADE U/S 2(22)(E) OF THE ACT IS BAD IN LAW. 6. THAT THE ADDITION OF RS. 3285775/ - MADE BY THE AO ON ACCOUNT OF EXEMPT L ONG TERM CAPITAL GAIN IS BAD IN LAW. 3. THE BRIEF FACT OF THE CASE IS AGAINST THE ORDER OF THE ASSESSING OFFICER DATED 22.01.2015, THE APPEAL HAS BEEN FILED BY THE ASSESSEE ON 27.03.2015. THUS, PAGE 2 OF 3 THERE WAS A DELAY OF ONE MONTH AND FIVE DAYS. THE APPELLANT SUB MITTED BEFORE THE LD CIT(A) THAT THE DELAY MAY BE CONDONED AS THE ORDER WAS NOT RECEIVED BY THE ASSESSEE AND HE HAS GET TO KNOW WHEN THE RECOVERY NOTICE WAS RECEIVED DATED 09.03.2015 FOR TAX. SUBSEQUENTLY, THE ASSESSEE APPLIED FOR CERTIFIED COPY OF THE ASS ESSMENT ORDER AND AFTER THAT THE APPEAL WAS FILED. THE LD CIT(A) FORWARDED THE REPLY OF THE ASSESSEE TO THE ASSESSING OFFICER WHO SUBMITTED THAT THE ORDER WAS SEND THROUGH SPEED POST AND WHICH WAS DELIVERED ON 24.01.2015. THE LD ASSESSING OFFICER SUBMITTED THE DETAILS OF SPEED POST TRACKER. IN VIEW OF THIS THE LD CIT(A) ISSUED A LETTER DATED 19.10.2015 ASKING THE ASSESSEE WHY THE APPEAL SHOULD NOT BE DISMISSED AS BEING OUT OF TIME U/S 249(2) OF THE INCOME TAX ACT, 1961. IN RESPONSE TO THAT THE ASSESSEE ON 2 1.12.2015 SUBMITTED THAT IT HAS NOT RECEIVED ANY SUCH ORDER AND FURTHER SUBMITTED THAT THE DELAY IS JUST FOR ONE MONTH AND FIVE DAYS EVEN OTHERWISE IT MAY BE CONDONED. FURTHER THE LD CIT(A) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL AS IT HAS FILED LATE. 4. THE LD AR REITERATED THE SAME FACTS BEFORE US AND SUBMITTED THAT NO SUCH ORDER WAS RECEIVED. IT WAS FURTHER SUBMITTED THAT THE IMPUGNED SPEED POST NO MENTIONED BY THE ASSESSING OFFICER. ON ENQUIRY FROM THE POST OFFICE IT WAS FOUND TO BE IN THE NAME OF MS. MONIKA AND DULY DELIVERED TO HER. SUCH SPEED POST DETAILS HAVE BEEN VERIFIED FROM THE LOCAL SPEED POST CENTER. IT WAS FURTHER STATED THAT THIS FACTS WERE STATED VIDE LETTER DATED 19.03.2015 BEFORE THE LD ASSESSING OFFICER WHICH WAS NOT ACCEPTED BY T HE LD ASSESSING OFFICER. THIS FACT HAS FURTHER BEEN REITERATED BEFORE US BY WAY OF A FACTS. AGAINST THIS THE LD DR SUBMITTED THAT THE ASSESSING OFFICER HAS GIVEN THE DETAILS OF SPEED POST AND THEREFORE THE PLEA OF THE ASSESSEE IS NOT CORRECT. HOWEVER HE S UBMITTED THAT THE MATTER HAS NOT BEEN DECIDED ON MERITS BY THE DL CIT(A) HE RELIED ON THE ORDERS OF THE LD ASSESSING OFFICER. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. AS THE ORDER WAS NOT SERVED ON THE ASSESSEE THERE WAS A DELAY OF ONE MONTH AND FIVE DAYS IN FILING OF THE APPEAL. IN RESPONSE TO THE SUBMISSION OF THE ASSESSEE BEFORE THE LD CIT(A) THE LD ASSESSING OFFICE R HAS SUBMITTED THAT SPEED POST TRADER OF THE GHAZIABAD POST OFFICE STATING THAT THE PARTICULAR SPEED POST HAS REACHED THE ASSESSEES OFFICE. HOWEVER, THE LD ASSESSING OFFICER DID NOT PRODUCED THE SPEED POST RECEIPT WHICH SHOWS THE NAME AND ADDRESS OF THE ASSESSEE. IN PAGE 3 OF 3 REPLY OF THE ASSESSING OFFICER THE SPEED POST CENTER ALSO DOES NOT SHOW THE ADDRESS OF THE ASSESSEE. THE ASSESSEE HAS SUBMITTED BY AN AFFIDAVIT THAT SUCH SPEED POST WAS IN THE NAME OF MS. MONIKA AND NOT OF THE ASSESSEE. THE BEFIT OF DOUBT MUST BE GIVEN TO THE ASSESSEE. THEREFORE IN VIEW OF THIS WE DIRECT THE LD CIT(A) TO CONDONE HE DELAY OF ONE MONTH AND FIVE DAYS IN FILING OF THE DELAY OF ONE MONTH AND FIVE DAYS IN FILING OF THE DELAY AND THEN ADJUDICATE THE ISSUES IN THE APPEAL ON MERITS. AS ACCORDING TO US THE ASSESSEE DOES NOT GET ANY BENEFIT IN DELAY IN FILING OF APPEAL WITHOUT ANY REASONABLE CAUSE. FURTHERMORE, IMMEDIATELY ON RECEIPT OF NOTICE U/S 236(3) THE ASSESSEE HAS PREFERRED AN APPEAL AND THEREFORE THE DELAY IN FILING OF THE APPEAL O F THE ASSESSEE DESERVED TO BE CONDONED. IN VIEW OF THIS GROUND NO. 1 TO 3 OF THE APPEAL OF THE ASSESSEE IS ALLOWED AND GROUND NO,. 4 TO 6 OF THE APPEAL OF THE ASSESSEE ARE SET ASIDE BEFORE THE LD CIT(A) TO BE ADJUDICATED ON MERITS AFTER PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 / 0 9 /2016 . - S D / - - S D / - ( SUCHITRA KAMBLE ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 9 / 0 9 / 2016 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI