Kirtiman Developers Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 4288/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58599 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 27-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Bonafide belief
• Section: 143(3); 147; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4288/DEL./2011 (ASSESSMENT YEAR : 2002-02) M/S. KIRTIMAN DEVELOPERS PVT. LTD., VS. ITO, WARD 5 (3), B 324, LOK VIHAR, PITAMPURA, NEW DELHI. NEW DELHI- 110 034. (PAN : AAACK6020F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN, CA REVENUE BY : MS. Y. KAKKAR, DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF CIT(APPEALS)-VIII, NEW DELHI DATED 10.08.2011 FOR T HE ASSESSMENT YEAR 2002-03. THE GROUNDS OF APPEAL READ AS UNDER :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)(CIT(A)] IS BAD, BOTH IN THE EYE OF LAW AN D ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN DISM ISSING THE APPEAL OF THE APPELLANT ON THE GROUND THAT THE APPE AL IS BARRED BY LIMITATION UNDER SECTION 249(2) OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN IGNO RING THE ITA NO.4288/DEL./2010 2 PROVISIONS OF THE ACT WHEREBY AN APPEAL CAN BE FILE D WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF THE ASSESSMENT O RDER WHICH ADMITTEDLY IN THIS CASE WAS RECEIVED ON 3.3.2010 AN D THE APPEAL HAVING BEEN FILED ON 1 ST APRIL, 2010 WAS WELL IN TIME. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN IGNOR ING THE REMAND REPORT GIVEN BY THE ASSESSING OFFICER WHEREB Y HE HAS CONFIRMED THAT THE ASSESSEE HAS APPLIED FOR CERTIFI ED COPY OF THE ASSESSMENT ORDER ON THE BASIS OF WHICH THE APPEAL H AS BEEN FILED. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN IGNO RING THE FACT THAT THE ASSESSMENT ORDER HAVING BEEN SENT AT A WRO NG ADDRESS THERE WAS NO SERVICE OF THE ASSESSMENT ORDER ON THE ASSESSEE. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN DISM ISSING THE APPEAL WITHOUT GIVING AN OPPORTUNITY TO THE APPELLA NT TO PRESENT ITS CASE. 7. THAT THE ORDER PASSED BY THE LEARNED CIT(A) BEIN G IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTIC E IS BAD IN LAW AND LIABLE TO BE QUASHED. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN IGNO RING THE FACT THAT FOR THE ASSESSMENT ORDER FOR 2001-02 AND THE N OTICE OF DEMAND CREATING A DEMAND FOR ASSESSMENT YEAR 2001-0 2 ON THE BASIS OF A NOTICE UNDER SECTION 148 FOR ASSESSMENT YEAR 2002-03 IS BAD IN LAW AND LIABLE TO BE QUASHED. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN NOT ADJUDICATING THE CONTENTION OF THE APPELLANT THAT THE PROCEEDING S INITIATED UNDER SECTION 147 R/W SECTION 148 OF THE ACT ARE BA D IN LAW AS THE CONDITION AND PROCEDURE PRESCRIBED UNDER THE ST ATUTE HAVE NOT BEEN ADHERED TO. 10. ON THE FACTS AND CIRCUMSTANCE OF THE CASE, THE NOTICE ISSUED UNDER SECTION 148 BEING BARRED BY LIMITATION , THE WHOLE PROCEEDINGS IN CONSEQUENCE THEREOF ARE NULL AND VOI D. ITA NO.4288/DEL./2010 3 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSMENT HAVING BEEN FRAMED WITHOUT SERVICE OF A STATUTORY N OTICE UNDER SECTION 143(2) OF THE ACT IS BAD IN LAW AND LIABLE TO BE QUASHED. 12. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN NOT ADJUDICATING THE ISSUE ON MERITS. 13. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR AL TER ANY OF THE GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING, THE LEARNED AR SUBMITTED THAT THE ASSESSEE COMPANY HAS NOT RECEIVED ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 148 R/W SECTION 143(3) FOR THE ASSESS MENT YEAR 2002-03 AS STATED BY THE ASSESSING OFFICER THAT THE ORDER WAS DISPATCHED BY SPEED POST ON 31 ST DECEMBER, 2009. THE COMPANY RECEIVED NOTICE UNDER SECTION 220(1)(I) OF THE ACT FOR THE OUTSTANDING PAYMENT AND THEREAFT ER THE ASSESSEE INFORMED THE ASSESSING OFFICER THAT HE HAS NOT RECEIVED THE ORDER AND REQUESTED FOR CERTIFIED COPY. IN THESE CIRCUMSTANCES, THE COMPAN Y WAS UNDER THE BONAFIDE BELIEF THAT THE APPEAL FILED BY THE ASSESSEE IS IN TIME AND THERE IS NO NEED FOR ANY CONDONATION OF DELAY. HE ALSO SUBMITTED THAT T HE REASON FOR NOT RECEIVING THE ORDER WHICH WAS DISPATCHED ON 31.12.2009 PROBAB LY ON ACCOUNT OF DISPATCHING THE ORDER AT THE ADDRESS B-193, LOK VIH AR, PITAMPURA, DELHI WHILE THE ADDRESS AT THE TIME WAS B-324, LOK VIHAR, PITAM PURA, DELHI-110034. THESE FACTS ALSO CLEAR FROM THE NOTICES ISSUED U/S 156 WHICH IS PLACED AT PAGE NO.1 OF THE PAPER BOOK AND PENALTY NOTICE PLACED AT PAGE 3 OF THE PAPER BOOK. ITA NO.4288/DEL./2010 4 HE REQUESTED TO SET ASIDE THE ISSUE TO THE FILE OF THE CIT (A) TO DECIDE AFRESH INCLUDING THE ISSUE RELATED TO DELAY IN FILING THE APPEAL. 3. LEARNED DR WAS ALSO NOT HAVING ANY OBJECTION TO THIS PROPOSITION. 4. AFTER HEARING BOTH THE SIDES AND IN THE INTEREST OF JUSTICE AND EQUITY, WE RESTORE THE ISSUE TO THE FILE OF THE CIT (A) WITH A DIRECTION TO DECIDE AFRESH AFTER HEARING THE ASSESSEE AS WELL AS AFTER PROVIDI NG AN OPPORTUNITY OF HEARING TO THE ASSESSING OFFICER. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF JANUARY, 2012. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 31 ST DAY OF JANUARY, 2012 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-VIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.