M/s Saggar Alloys, Mandi Gobindgarh V. DCIT, Mandi Gobindgarh

ITA 583/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9849 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: NITIN SAGGAR PARTNER
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 583/CHD/2016 ASSESSMENT YEAR: 2008-09 M/S SAGAR ALLOYS, VS THE DCIT, H.NO. 113, SECTOR 3C, CIRCLE, MANDI GOBINDGARH. MANDI GOBINDGARH. PAN: AALFS7236H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NITIN SAGGAR (PARTNER) RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 29.06.2016 DATE OF PRONOUNCEMENT : 30.06.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS), PATIALA DATED 24.06.2014 FOR ASSESSMENT YEAR 2008-09. 2. I HAVE HEARD THE PARTNER OF THE ASSESSEE FIRM AN D LD. DR FOR THE REVENUE. THE RECORD IS PERUSED. 3. IN THIS CASE, THE ASSESSING OFFICER MADE ADDITIO N OF RS. 5,24,587/- ON REJECTING THE BOOKS OF ACCOUNT BY APPLYING HIGHER PROFIT RATE. THE ASSESSEE PREFERRE D APPEAL BEFORE LD. CIT(APPEALS) WHICH WAS DISMISSED BEING T IME BARRED AND FOR WANT OF PROSECUTION. 2 4. THE IMPUGNED ORDER IS DATED 24.06.2014, HOWEVER, THE ASSESSEE IN FORM NO. 36 HAS MENTIONED IN COLUMN NO. 9 THAT THE ORDER APPEALED AGAINST HAS BEEN RECEIVED O N 27.04.2016. THE ASSESSEE FILED APPLICATION FOR CON DONATION OF DELAY IN WHICH IT WAS SUBMITTED THAT NOBODY APPE ARED BEFORE THE LD. CIT(APPEALS) BECAUSE NO INFORMATION WAS GIVEN TO THE ASSESSEE AT THE GIVEN ADDRESS OR IN AN Y OTHER MANNER. THE FATE OF DECIDING OF THE APPEAL CAME TO THE KNOWLEDGE OF THE ASSESSEE WHEN DEMAND OF PENALTY AM OUNT WAS RECEIVED. COPY OF THE IMPUGNED ORDER WAS OBTAI NED FROM RTI APPLICATION FROM THE APPELLATE AUTHORITY. THE ASSESSEE, THEREFORE, PRAYED THAT DELAY IN FILING AP PEAL MAY BE CONDONED. THE ASSESSEE PLACED ON RECORD COPY OF APPLICATION FILED UNDER RTI ACT, 2005 AND REPLY TO THE SAME IN WHICH ASSESSEE ASKED FOR DELIVERY AND ACKNOWLEDG EMENT OF THE IMPUGNED ORDER TO THE ASSESSEE FIRM. THE RE VENUE DEPARTMENT SUPPLIED COPY OF THE LETTER DATED 14.07. 2014 TO THE ASSESSEE UNDER RTI ACT IN WHICH THE OFFICE OF T HE LD. CIT(APPEALS), PATIALA DIRECTED THE ASSESSING OFFICE R TO SERVE THE IMPUGNED ORDER UPON ASSESSEE AND SUBMIT P ROOF OF SERVICE TO HIS OFFICE. THERE IS NO SIGNATURE OR ACKNOWLEDGEMENT AVAILABLE ON THE RECORD OF THE REVE NUE TO PROVE THAT IMPUGNED ORDER WAS SERVED UPON ASSESSEE WITHIN TIME. AS SUCH, EXPLANATION OF THE ASSESSEE IS CORRECT THAT THE COPY OF THE IMPUGNED ORDER WAS NEV ER SERVED UPON ASSESSEE. 3 5. AFTER HEARING RIVAL CONTENTIONS AND SUBMISSIONS OF THE PARTIES AND INFORMATION PROVIDED UNDER RTI ACT, I A M SATISFIED THAT THE COPY OF THE IMPUGNED ORDER WAS N OT SERVED UPON ASSESSEE WHICH WAS LATER ON OBTAINED BY ASSESSEE UNDER RTI ACT. THEREFORE, CONTENTION OF T HE ASSESSEE IS ACCEPTED THAT IMPUGNED ORDER WAS SERVED UPON ASSESSEE ON 27.04.2016 AND AS SUCH THE APPEAL OF TH E ASSESSEE IS FILED WITHIN THE PERIOD OF LIMITATION. THE DELAY, IF ANY IN FILING THE APPEAL IS ACCORDINGLY, CONDONE D. 6. AS REGARDS THE MERIT IS CONCERNED, THE LD. CIT(A PPEALS) FOUND THAT APPEAL OF THE ASSESSEE IS DELAYED BY FOU R DAYS. THE LD. CIT(APPEALS) NOTED THAT ASSESSEE HAS BEEN INTIMATED THE DATE OF HEARING THROUGH NOTICES FIXED ON 29.05.2012, 13.09.2012, 07.02.2013, 27.02.2013, 21.05.2014 AND 04.06.2014. IT IS ALSO NOTED THAT N OTICE FOR HEARING ON 27.02.2013 AND 04.06.2014 HAVE BEEN SERV ED THROUGH ASSESSING OFFICER. THE LD. CIT(APPEALS) NO TED THAT ASSESSEE DID NOT APPEAR DESPITE HIS NOTICES, THEREF ORE, DELAY IS NOT EXPLAINED AS WELL AS NOTHING IS ARGUED ON MERIT. THEREFORE, APPEAL OF THE ASSESSEE WAS DISMI SSED FOR NON-PROSECUTION AND THAT DELAY IN FILING APPEAL WAS NOT CONDONED. 7. AFTER HEARING RIVAL CONTENTIONS, I AM OF THE VIE W THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF TH E LD. CIT(APPEALS). THE ASSESSEE HAS PLACED ON RECORD COP Y OF THE REPLY FILED UNDER RTI ACT BY ADMINISTRATIVE OFF ICER- CUM-CPIO, OFFICE OF LD. CIT(APPEALS), PATIALA DATED 4 08.06.2016 IN WHICH THE ASSESSEE ASKED FOR THE DETA ILS OF DELIVERY OF THE ABOVESAID NOTICES UPON ASSESSEE ALO NGWITH ACKNOWLEDGEMENT RECEIPTS. THE REVENUE DEPARTMENT U NDER RTI ACT HAS SUPPLIED COPIES OF ALL THESE NOTICES TO THE ASSESSEE UNDER RTI ACT, IN WHICH IN NONE OF THE NOT ICE, THERE IS ANY ACKNOWLEDGEMENT OF RECEIPT OF THE NOTI CE BY THE ASSESSEE. THE PARTNER OF THE ASSESSEE FIRM, TH EREFORE, RIGHTLY CONTENDED THAT NONE OF THE ABOVE NOTICES IS SUED BY THE LD. CIT(APPEALS) FOR HEARING OF THE APPEAL HAVE BEEN SERVED UPON ASSESSEE. IT IS, THEREFORE, A CASE OF DENIAL OF REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE BEFORE PASSING THE APPELLATE ORDER. FURTHER, IT IS NOT CLEAR FROM THE IMPUGNED ORDER WHETHER LD. CIT(APPEALS) HA S GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO FILE ANY APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL. THEREFORE, WITHOUT GIVING ANY OPPORTUNITY TO THE AS SESSEE TO EXPLAIN DELAY IN FILING THE APPEAL AS WELL AS HE ARING THE APPEAL ON MERIT, I AM OF THE VIEW THAT PRINCIPLE OF NATURAL JUSTICE HAS BEEN VIOLATED IN THIS CASE. THEREFORE, ORDER OF LD. CIT(APPEALS), EVEN ON MERIT, CANNOT BE SUSTAINE D. 5. I, ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF L D. CIT(APPEALS), PATIALA WITH DIRECTION TO RE-DECIDE A PPEAL OF THE ASSESSEE BY GIVING OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND GIVING OPPORTUNITY TO FILE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL BELATEDLY BEFORE 5 HIM. THE LD. CIT(APPEALS) SHALL GIVE REASONABLE SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 30 TH JUNE,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH