ABHAY AUTO TRADE P. LTD, MUMBAI V. DCIT 5(1), MUMBAI

ITA 6205/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7617 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 20-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Assessee Lawyers: R N VASANI
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation
• Section: 154; 143(3)

Judgement Text

M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006- -- -07) 07) 07) 07) IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI H HH H BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM SHRI SHRI SHRI SHRI RAJENDRA, RAJENDRA, RAJENDRA, RAJENDRA, AM AM AM AM ITA NO. ITA NO. ITA NO. ITA NO. 6205/MUM/2010 6205/MUM/2010 6205/MUM/2010 6205/MUM/2010 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2006 2006 2006 2006- -- -07 0707 07) )) ) M/S ABHAY AUTO TRADE P LTD 101 1 ST FLOOR, GRACE HEIGHTS 149 ALIBHAI PREMJI MARG GRANT ROAD (EAST) MUMBAI 400 007 VS THE DY COMMR OF INCOME TAX 5(1), MUMBAI (APPELLANT (APPELLANT (APPELLANT (APPELLANT ) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AACCA4251E AACCA4251E AACCA4251E AACCA4251E ASSESSEE BY SHRI R N VASANI REVENUE BY SH V V SHASTRI DT.OF HEARING 20 TH MARCH 2012 DT OF PRONOUNCEMENT 28 TH , MARCH 2012 ORDER ORDER ORDER ORDER PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 5.1.2010 OF THE CIT(A) FOR THE AY 2006-07. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: I) THE LEARNED CIT (APPEALS) COMMITTED A GROSS ERROR O F LAW & FACTS IN NOT ADMITTING THE APPEAL ON THE GROUND THAT IT WAS TILED LATE. IN THE COURSE OF APPELLATE PROCEEDINGS THE ISSUE OF LATE FILING OF A PPEAL WAS NOT RAISED BY CIT(A) AT ALL. 2) HE ERRED IN NOT PROPERLY CONSIDERING THE APPLICATI ON FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORDS U/S. 154, AND ALSO DI D NOT GRANT AN OPPORTUNITY OF BEING HEARD. 3) HE FAILED TO APPRECIATE THE FACTS THAT THE APPEA L WAS TILED WITHIN 30 DAYS OF RECEIPT OF ORDER FROM THE ASSESSING OFFICER . 4) HE ERRED IN DISMISSING THE APPEAL WITHOUT APPRECIA TING THE RELEVANT FACTS AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD ON T HE ISSUE OF DELAY IN FILING THE APPEAL. M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006- -- -07) 07) 07) 07) 2 5) HE ERRED IN NOT PASSING THE ORDER U/S.250 ON MERI TS. 6) DELAY IF ANY, IN FILING THE APPEAL PLEASE BE CON DONED, AS THE ORDER UIS.250 WAS RECEIVED ON 13/01/2010, BUT AN ORDER U/S.154 AGAIN ST THE ORDER U/S.250 HAS BEEN RECEIVED ONLY ON 21/07/2010. 3 IN THIS CASE, THE ASSESSMENT U/S 143(3) OF THE I T ACT WAS COMPLETED ON 26.12.2008 WHEREBY THE ASSESSING OFFICER HAS MADE V ARIOUS DISALLOWANCES/ADDITIONS. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT(A). THE CIT(A), WHILE DECIDING THE APPEAL OF THE ASSESSEE HAS COME TO THE CONCLUSION THAT THE APPEAL OF THE ASSESSEE IS TIME BARRED AS THERE IS A DELAY OF 12 DAYS IN FILING THE APPEAL. ACCORDINGLY, WITHOUT GOING INTO THE MERITS OF THE A PPEAL, THE ASSESSEES APPEAL WAS DISMISSED AS NOT ADMITTED BEING TIME BARRED. THERE AFTER, THE ASSESSEE FILED PETITION U/S 154 FOR RECTIFICATION OF THE ORDER PLEADING THA T THE ASSESSMENT ORDER DATED 26.12.2008 WAS RECEIVED BY THE ASSESSEE ONLY ON 19. 2.2009; THEREFORE, THE APPEAL FILED BY THE ASSESSEE ON 17.3.2009 IS WITHIN THE P ERIOD OF LIMITATION. THE CIT(A) DISMISSED THE PETITION U/S 154 VIDE ORDER DATED 9.7 .2010. 4 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT THE ASSESSMENT DATED 26.12.2008 WAS RECEIVED BY THE ASSESSEE ONLY ON 19. 02.2009. HE HAS REFERRED THE COPY OF THE POSTAL ENVELOP UNDER WHICH THE ASSESSME NT ORDER WAS RECEIVED BY THE ASSESSEE AND SUBMITTED THAT IT BEARS THE POSTAL STA MP DT 16.2.2009/17.2.2009 . THEREFORE, THE ASSESSEE CANNOT RECEIVE THE SAID POS T PRIOR TO 17.2.2009. HE HAS FURTHER CONTENDED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY OF EXPLAINING THE DELAY. TH E LD AR HAS FURTHER SUBMITTED THAT ON MERITS, THE ISSUE HAS BEEN CONSIDERED AND DECIDE D BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE AY 2005-06 IN ITA NO.5010/MUM/2009 VIDE ORDER DATED 13.8.2010; THEREFORE, THE ORDER OF THE CIT(A) IS NOT SUSTAINAB LE. M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006- -- -07) 07) 07) 07) 3 4.1 ON THE OTHER HAND, THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 5 WE HAVE CONSIDERED THE RIVAL CONTENTION AS WELL A S THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE FILED THE APPEAL BEFORE THE C IT(A) ON 17.3.2009 AGAINST THE ORDER DT 26.12.2008. THE CIT(A) DISMISSED THE APPE AL OF THE ASSESSEE BEING BARRED BY LIMITATION AS THERE WAS A DELAY OF 12 DAYS IN FI LING THE APPEAL. WE NOTE THAT THE CIT(A) CALCULATED THE PERIOD OF LIMITATION ON THE B ASIS OF THE APPLICATION DT 5.2.2009 FILED BY THE ASSESSEE AND THEREFORE, IN VIEW OF TH E CIT(A), THE ASSESSEE HAS RECEIVED THE ASSESSMENT ORDER ON 5.2.2009. 5.1 IT IS PERTINENT TO NOTE THAT WHILE DISCUSSING T HE FACT, THE CIT(A) HAS STATED IN THE IMPUGNED ORDER THAT THE ASSESSING OFFICER SENT THE ASSESSMENT ORDER ALONG WITH THE NOTICE OF DEMAND THROUGH REGISTERED POST ON 29. 12.2008, WHICH WAS RECEIVED BACK UN-SERVED. IT IS APPARENT THAT THERE IS NO MA TERIAL TO SHOW THAT THE ASSESSMENT ORDER WAS SERVED ON THE ASSESSEE OTHER THAN THE DAT E CLAIMED BY THE ASSESSEE. THE CIT(A) PRESUMED THAT THE ASSESSEE HAS RECEIVED THE ASSESSMENT ORDER PRIOR TO 5.2.2009 BECAUSE THE ASSESSEE FILED AN APPLICATION FOR RECTIFICATION OF THE ORDER. 5.2 IT IS CLEAR FROM THE IMPUGNED ORDER THAT THE CI T(A) HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE MAINTAIN ABILITY OF THE APPEAL BEING BARRED BY LIMITATION. SUBSEQUENTLY, THE ASSESSEE F ILED PETITION U/S 154 WHICH WAS ALSO REJECTED BY THE CIT(A) ON SIMILAR GROUND THAT WHEN THE ASSESSEE FILED AN APPLICATION BEFORE THE ASSESSING OFFICER FOR RECTIFICATION OF THE ASSESSMENT ORDER ON 5.2.2009, THEN THE ASSESSEE RECEIVED THE ASSESSMENT ORDER PRI OR TO 5.2.2009. THE ASSESSEE HAS PLACED BEFORE US A COPY OF THE REGISTERED ENVELOP W HEREBY THE ASSESSEE RECEIVED THE ASSESSMENT ORDER WHICH CLEARLY BEARS THE POSTAL STAMP DT 16.2.2009 AND M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006- -- -07) 07) 07) 07) 4 17.2.2009 AND ESTABLISHED THAT THE SAID REGISTERED LETTER COVER CANNOT BE SERVED ON THE ASSESSEE PRIOR TO 17.2.2009. 5.3 ON OUR DIRECTION, THE ASSESSEE HAS FILED A COPY OF FORM 35 IN WHICH THE DATE OF RECEIPT OF THE ASSESSMENT ORDER HAS BEEN CLEARLY MENTIONED AS 19.2.2009. THEREFORE, IN THE ABSENCE OF ANY MATERIAL TO SHOW C ONTRARY, IT CANNOT BE DEEMED THAT THE ASSESSEE RECEIVED THE ASSESSMENT ORDER PRI OR TO 19.2.2009. 5.4 EVEN OTHERWISE, THERE WAS A DELAY OF 12 DAYS AN D IF THERE WAS CONFUSION IN THE MIND OF THE ASSESSEE ABOUT THE DELAY IN FILING THE APPEAL, THE CIT(A) SHOULD HAVE GIVEN OPPORTUNITY TO EXPLAIN SUCH DELAY AND THEREAF TER SHOULD HAVE DECIDED THE CONDONATION OF DELAY. 6 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF T HE CASE AS WELL AS IN VIEW OF THE FACT THAT THE TRIBUNAL IN ASSESSEES OWN CAS E FOR THE AY 2005-06 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, WE SET ASIDE THE O RDER OF THE CIT(A) AND REMAND THE MATTER BACK TO THE RECORD OF THE CIT(A) FOR DECIDI NG THE APPEAL OF THE ASSESSEE ON MERITS AS PER LAW. 7 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUN ORDER PRONOUN ORDER PRONOUN ORDER PRONOUNCED ON THIS CED ON THIS CED ON THIS CED ON THIS 28 2828 28 TH THTH TH , ,, ,DAY OF DAY OF DAY OF DAY OF MAR MAR MAR MAR 2012 2012 2012 2012 SD/ SD/ SD/ SD/ SD/ SD/ SD/ SD/- -- - ( (( ( RAJENDRA RAJENDRA RAJENDRA RAJENDRA ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:28 TH , MAR 2012 RAJ* RAJ* RAJ* RAJ* M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD M/S ABHAY AUTO TRADE P LTD ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 ITA NO. 6205/MUM/2010 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006 (ASST YEAR 2006- -- -07) 07) 07) 07) 5 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI