Fateh Singh (L/H of Late Dharamveer), Ghaziabad V. ITO WARD - 1(2), Ghaziabad

ITA 4265/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6163 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB SR DR
• Assessee Lawyers: RAKESH GUPTA
• Section: 271(1)(c); 147; 6; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI , , BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER / ITA NOS:- 4264 & 4265/DEL/2019 / ASSESSMENT YEAR: 2008-09 SH. FATEH SINGH L/H OF LATE SH. DHARAMVEER C/O KRISHNA .......... /APPELLANT SAREES, H. NO. 41, HIG, ABHAY KHAND-1 ST INDIRAPURAM, GHAZIABAD PAN-ASLPS4158C VS ITO, WARD-1(2), GHAZIABAD . ! / RESPONDENT '#$ / APPELLANT BY : SH. SOMIL AGARWAL, ADV & SH. RAKESH GUPTA, ADV !'#$ / RESPONDENT BY :MS. ASHIMA NEB, SR. DR %'&'( / DATE OF HEARING : 30.09.2019 )* '&'( / DATE OF PRONOUNCEMENT: 04.10.2019 / ORDER PER SUSHMA CHOWLA, JM: OUT OF THIS BUNCH OF APPEALS, APPEAL IN ITA NO. 426 4/DEL/2019 HAS BEEN FILED AGAINST THE ORDER OF CIT(A) DATED 31 .03.2019 RELEVANT TO ASSESSMENT YEAR 2008-09 AGAINST THE ORDER PASSED UN DER SECTION 147 READ WITH SECTION 144 OF THE ACT. FURTHER THE APPEA L IN ITA NO. / ITA NO:- 4264/DEL/2019 / ITA NO:- 4265/DEL/2019 PAGE | 2 4265/DEL/2019 IS PASSED AGAINST THE ORDER OF CIT(A) DATED 29.03.2019 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. 2. BOTH THESE APPEALS RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL WHICH READ AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APP EAL IN LIMINE ON THE GROUND THAT THERE WAS DELAY IN FILING APPEAL WHEREA S THERE WAS NO DELAY. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN TREATING THE APPEA L AS NON-EST AND HAS FURTHER ERRED IN RECORDING THE FOLLOWING:- (A) THAT REPLY DATED 07-03-2019 WAS UNAUTHORIZED REPLY . (B) THAT THE DEMAND NOTICE WAS SERVED ON 16-06-2016. (C) THAT THERE WAS NO EVIDENCE THAT SH. FATEH SINGH WA S THE LEGAL HEIR. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, AC TION OF LD. CIT(A) IN DISMISSING THE APPEAL IN LIMINE, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT DECIDING THE C ASE ON MERITS AND WITHOUT CONSIDERING THE VARIOUS GROUNDS OF APPEAL R AISED WITH THE APPEAL MEMO AND MORE PARTICULARLY WHEN WRITTEN SUBMISSIONS AND PAPER BOOK FILED BY THE ASSESSEE. 4. THE ASSESSEE IN BOTH THE APPEALS IS AGGRIEVED BY THE DISMISSAL OF THE APPEAL BY THE CIT(A) IN LIMINE THAT THERE WAS D ELAY IN FILING THE APPEAL LATE BEFORE HIM AND ALSO TREATING THE APPEAL AS NONEST. 5. BRIEFLY IN THE FACTS OF THE CASE, THE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE ACT WAS PASSED ON 31.03.2016 . THE ASSESSEE / ITA NO:- 4264/DEL/2019 / ITA NO:- 4265/DEL/2019 PAGE | 3 DEMISED ON 14.09.2016. THE LEGAL HEIRS OF THE ASSES SEE CLAIMED THAT THE SAID ASSESSMENT ORDER WAS NOT SERVED IN TIME, BUT W ERE SERVED AFTER THE LEGAL HEIRS APPLIED FOR CERTIFIED COPIES, WHICH WAS GIVEN ON 26.09.2017. THE APPEAL WAS FILED BEFORE THE CIT(A) ON 18.10.201 7 I.E. WITHIN THE PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF CERTI FIED COPIES. THE CIT(A) WAS OF THE VIEW THAT THE DEMAND NOTICE WAS DULY SER VED UPON THE ASSESSEE ON 15.06.2016 THROUGH AFFIXTURE BY THE INC OME TAX INSPECTOR. THE ASSESSEE STRONGLY OBJECTS TO THE SAME. THE APPE AL OF THE ASSESSEE FOR THE AFORESAID REASON WAS DISMISSED IN LIMINE. F URTHER THE CIT(A) HAS ALSO NOTED THAT THERE WAS NO EVIDENCE TO THE FACT T HAT SHRI FATEH SINGH WAS THE LEGAL HEIR AND NO DOCUMENT TO ESTABLISH HIS IDENTITY WAS FURNISHED. HE ALSO NOTED THE FACT THAT DURING ASSES SMENT PROCEEDINGS SHRI RAMPRAKASH SON OF ASSESSEE HAD ATTENDED THE PR OCEEDINGS. THE CIT(A) THUS DISMISSED THE APPEAL AS NONEST. SIMILAR LY THE APPEAL OF ASSESSEE AGAINST THE ORDER LEVYING PENALTY U/S 271( 1)(C) OF THE ACT WAS DISMISSED. 6. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ORDER PASSED BY THE CIT(A). THE LEARNED AR FOR THE ASSESSEE STRONGL Y OBJECTED TO THE OBSERVATIONS OF THE CIT(A), WHEREAS THE LEARNED DR FOR THE REVENUE PLACED STRONG RELIANCE ON THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST ISSUE WHICH ARISES IN THE PRESENT APPEAL IS A GAINST THE ORDER OF THE / ITA NO:- 4264/DEL/2019 / ITA NO:- 4265/DEL/2019 PAGE | 4 CIT(A) IN TREATING THE APPEAL AS NONEST AND ALSO IN DISMISSING THE APPEAL IN LIMINE. THE ASSESSMENT ORDER WAS PASSED I N THE CASE OF SHRI DHARAMVEER SINGH ON 31.03.2016. THE SAID ORDER WAS NOT SERVED UPON THE ASSESSEE WHO DEMISED ON 14.09.2016. THE CASE OF THE LEGAL HEIR OF THE ASSESSEE BEFORE US IS THAT HE WAS THE SON OF TH E DECEASED ASSESSEE ALONGWITH HIS BROTHER SHRI. RAMPRAKASH. THE STATUS OF HIS BEING LEGAL HEIR IS ALSO ACKNOWLEDGED BY THE AO AS PER THE EVID ENCE PLACED AT PAGES 1-1A (ENGLISH TRANSLATION) OF THE PAPER BOOK. THE A PPEAL BEFORE THE CIT(A) WAS ELECTRONICALLY VERIFIED BY THE FATEH SIN GH I.E. SON OF THE DECEASED ASSESSEE. IN SUCH CIRCUMSTANCES, THERE IS NO MERIT IN THE ORDER OF CIT(A) IN OBSERVING THAT FATEH SINGH HAD F AILED TO ESTABLISH HIS IDENTITY. WE REVERSE THE FINDING OF THE CIT(A) IN T HIS REGARD. 8. NOW COMING TO THE SECOND ASPECT OF THE CASE OF C IT(A) THAT THE PRESENT APPEAL HAS BEEN FILED AFTER THE DELAY OF AB OUT 13 MONTHS. THE ASSESSEE IN THIS REGARD HAD MADE A REPRESENTATION B EFORE THE CIT(A) THAT AFTER NOTICE UNDER SECTION 221 WAS SERVED UPON THE LEGAL HEIRS OF THE ASSESSEE, ENQUIRIES WERE MADE AND CERTIFIED COP IES OF THE ASSESSMENT ORDERS WERE APPLIED WHICH WERE HANDED OV ER ON 26.9.2017. THE ASSESSEE CLAIMED TO HAVE FILED THE APPEAL WITHI N 30 DAYS FROM THE DATE OF RECEIPT OF CERTIFIED COPIES. THE CASE OF RE VENUE ON THE OTHER HAND IS THAT DEMAND NOTICE WAS DULY SERVED UPON THE ASSESSEE THROUGH AFFIXTURE BY AN INCOME TAX INSPECTOR. THE PRESENT A PPEAL HAS BEEN FILED BY THE LEGAL HEIR WHO RECEIVED THE ASSESSMENT ORDER ON 26.9.2017 AND / ITA NO:- 4264/DEL/2019 / ITA NO:- 4265/DEL/2019 PAGE | 5 THE APPEAL THEREAFTER WAS FILED WITHIN A PERIOD OF 30 DAYS. WITH REGARD TO THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT DATED 30.09.2016, THE ASSESSEE SOUGHT INFORMATION UNDER T HE RIGHT TO INFORMATION ACT, 2005 AND IT HAS BEEN REPORTED THAT THE ORDER DATED 30.09.2016 DISPATCHED TO THE ASSESSEE WAS RETURNED BACK UNSERVED. THE CERTIFIED COPY OF THE ORDER WAS PROVIDED ON 3.1 0.2017 TO THE LEARNED AR OF THE ASSESSEE. 9. IN SUCH FACTS AND CIRCUMSTANCES, WE FIND MERIT I N THE PLEA OF THE ASSESSEE THAT IT HAD FILED THE PRESENT APPEAL BOTH IN THE QUANTUM AND THE PENALTY APPEALS WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF CERTIFIED COPIES OF THE RESPECTIVE ORDERS. HENCE THERE WAS NO DELAY IN FILING THE APPEAL BEFORE THE CIT(A). ACCORDINGLY, W E REVERSE THE FINDINGS OF THE CIT(A) IN THIS REGARD. THE ISSUE IS REMITTED BACK TO THE FILE OF CIT(A) TO DECIDE BOTH THE QUANTUM ADDITIONS AND LEV Y OF PENALTY, IN ACCORDANCE WITH LAW, AFTER AFFORDING REASONABLE OPP ORTUNITY OF HEARING TO THE ASSESSEE. THE GROUNDS OF APPEAL RAISED BY TH E ASSESSEE ARE THUS ALLOWED. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH DAY OF OCTOBER, 2019. SD/- SD/- (B.R.R. KUMAR) (SUSHM A CHOWLA) $(, $(, $(, $(, /ACCOUNTANT MEMBER , , , , /JUDICIAL MEMBER / DATED : 04 TH OCTOBER, 2019 . / ITA NO:- 4264/DEL/2019 / ITA NO:- 4265/DEL/2019 PAGE | 6 SH $+' &-.$-&/ COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. ! / THE RESPONDENT; 3. %0 1 2 / THE CIT(A) 4. -34 & 5 5 / DR, ITAT, DELHI 5. 467 / GUARD FILE. $+% $+% $+% $+% / BY ORDER , !-& & // TRUE COPY // 9:,; , 5 / ITAT, DELHI