Sh. Harminder Singh, Chandigarh V. ITO, Chandigarh

ITA 400/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80929 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 400/CHD/2014 ASSESSMENT YEAR : 2009-10 SH.HARMINDER SINGH, VS. THE INCOME TAX OFFICER, H.NO.1570, SECTOR 23 B, WARD 5(2), CHANDIGARH. CHANDIGARH. PAN: ACNPS7837E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NEERAJ JAIN RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 09.10.2014 DATE OF PRONOUNCEMENT : 10.10.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LEARNED CIT (APPEALS), CHANDIGARH DATE D 2.1.2014 FOR ASSESSMENT YEAR 2009-10. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT, AS PER ITNS-51 RECEIVED FROM THE ASSESSING OFFICER, THE DEMAND NOT ICE WAS SENT BY SPEED POST ON 30.12.2011. THE LEARNED CIT (APPEALS), THEREFORE, NOTED THAT IT MUST HAVE BEEN SERVED WITHIN 4-5 DAYS UPON THE ASSESSEE. THE APPEAL IS FILED ON 12.6.2012, WHICH IS LATE BY 130 DAYS. THE ASSESSE E DID NOT FILE APPLICATION FOR CONDONATION OF DELAY. THEREF ORE, THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE. 2 3. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSMENT ORDER IN QUESTION UNDER SECTION 143(3) OF THE INCOM E TAX ACT WAS PASSED ON 9.12.2011. THE ASSESSEE IN FORM NO. 35 FOR FILING THE APPEAL BEFORE THE LEARNED CIT (APPEALS) HAS MENTIONED 12.6.2012 THE DATE OF SERVICE OF THE RELE VANT NOTICE OF DEMAND FOR THE PURPOSE OF FILING THE APPEAL. T HE LEARNED CIT (APPEALS) NOTED IN THE IMPUGNED ORDER THE DATE OF INSTITUTION OF THE APPEAL BEFORE HIM AS DATED 26.6. 2012. THEREFORE, ACCORDING TO THE ASSESSEE, THE APPEAL WA S PREFERRED BEFORE THE LEARNED CIT (APPEALS) WITHIN TIME. HOWE VER, THE LEARNED CIT (APPEALS) WRONGLY NOTED IN THE IMPUGNED ORDER THAT THE APPEAL HAS BEEN FILED ON 12.6.2012. THE ASSESSEE CALLED FOR THE INFORMATION UNDER RTI ACT AND THE RE PLY IS SUBMITTED TO HIM ALONGWITH ANNEXURE BY THE REVENUE DEPARTMENT, COPIES OF THE SAME ARE FILED IN THE PAP ER BOOK. ACCORDING TO THE INFORMATION SUPPLIED UNDER RTI ACT TO THE ASSESSEE, THE ORDER OF ASSESSMENT DATED 9.12.2011 W AS DISPATCHED TO THE ASSESSEE VIDE NO.9565 AND 9566 DA TED 30.12.2011. THE COPY OF THE DISPATCH REGISTER IS ALSO SUPPLIED TO THE ASSESSEE. HOWEVER, IT WOULD REVEA L THAT AGAINST THESE DISPATCH NOS. THE ASSESSMENT ORDER UN DER SECTION 271 (1) (C) AND NOTICE UNDER SECTION 156 HA VE BEEN SENT ON SOME OTHER ADDRESS OTHER THAN THE ADDRESS M ENTIONED IN THE ASSESSMENT ORDER. THE NARRATION WOULD SHO W THAT SOME PENALTY ORDER WAS SENT TO THE ASSESSEE AT DIFF ERENT ADDRESS BUT THE IMPUGNED ORDER IN QUESTION IS ASSES SMENT ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT. FURTHER NO 3 DETAILS HAVE BEEN PROVIDED WHETHER THE SAID ENVELOP E SENT TO THE ASSESSEE AT DIFFERENT ADDRESS WAS RETURNED TO T HE REVENUE DEPARTMENT OR NOT. THE COPY OF THE DEMAND NOTICE UNDER SECTION 156 OF THE INCOME TAX ACT IS ALSO SUPPLIED TO THE ASSESSEE DATED 9.12.2011 FOR ASSESSMENT YEAR IN QUE STION, ON WHICH THERE IS ENDORSEMENT OF THE ASSESSEE TO HAVE RECEIVED THE DEMAND NOTICE ON DATED 12.6.2012. THESE FACTS WOULD CLEARLY REVEAL THAT THE ASSESSEE HAS RECEIVED THE C OPY OF THE DEMAND NOTICE ON 12.6.2012 AND PENALTY ORDER, IF AN Y, WAS SENT BY SPEED POST ON 30.12.2011 AND WAS NOT CONNEC TED WITH THE ASSESSMENT IN APPEAL AND WAS ALSO SENT AT DIFFE RENT ADDRESS OTHER THAN THE ADDRESS MENTIONED IN THE ASS ESSMENT ORDER. IT IS NOT CLARIFIED UNDER INFORMATION SUPP LIED UNDER RTI AS TO WHY THE ASSESSMENT ORDER AND DEMAND NOTIC E IN QUESTION WERE NOT SENT TO THE ASSESSEE BY SPEED POST/REGISTERED POST ON THE GIVEN ADDRESS IN THE AS SESSMENT ORDER. THIS FACT WOULD CLEARLY PROVE THAT THE FIND INGS OF THE LEARNED CIT (APPEALS) ARE FACTUALLY INCORRECT AND I T WAS MERELY PRESUMPTION OF THE LEARNED CIT (APPEALS) THAT THE A SSESSMENT ORDER ON THE DEMAND NOTICE MUST HAVE BEEN SERVED UP ON THE ASSESSEE BY 4.1.2012. CONSIDERING THE MATERIAL ON RECORD WE ARE SATISFIED WITH THE EXPLANATION OF THE ASSESSEE THAT THERE WAS NO DELAY IN FILING THE APPEAL BEFORE THE LEARNE D CIT (APPEALS). THEREFORE, THE LEARNED CIT (APPEALS) S HOULD NOT HAVE DISMISSED THE APPEAL OF THE ASSESSEE TREATING IT TO BE TIME BARRED. MOREOVER, WHEN THE ASSESSEE HAS CLAI MED IN FORM NO.35 TO HAVE RECEIVED DEMAND NOTICE/ASSESSMEN T ORDER ON 12.6.2012, THE LEARNED CIT (APPEALS) IF WAS NOT SATISFIED 4 WITH THE EXPLANATION OF THE ASSESSEE, SHOULD HAVE H ELD PROPER ENQUIRIES INTO THE MATTER AND SHOULD HAVE NOT DECID E THE QUESTION OF LIMITATION MERELY ON PRESUMPTION. WE, THEREFORE, DO NOT JUSTIFY THE FINDINGS OF THE LEARNED CIT (APP EALS) THAT THE APPEAL OF THE ASSESSEE IS TIME BARRED. WE AC CORDINGLY, SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT (AP PEALS) AND RESTORE THE APPEAL OF THE ASSESSEE TO HIS FILE WITH THE DIRECTION TO RE-DECIDE THE APPEAL OF THE ASSESSEE ON MERITS S TRICTLY IN ACCORDANCE WITH LAW. THE LEARNED CIT (APPEALS) SH ALL GIVEN REASONABLE SUFFICIENT OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF OCTOBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10 TH OCTOBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5