M/s Mega Packages, Chandigarh V. ITO, Chandigarh

ITA 759/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63993 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Period of limitation; Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.759 /CHD/2012 (ASSESSMENT YEAR: 2008-09) M/S MEGA PACKAGES, VS. THE INCOME TAX OFFICER, PLOT NO.87, SECTOR 8, WARD 1(2), CHANDIGARH. CHANDIGARH. PAN: AAMFM1966F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH GUPTA RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 17.10.2012 DATE OF PRONOUNCEMENT : 30.10.2012 O R D E R PER SUSHMA CHOWLA, J.M. : THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH DA TED 11.05.2012 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST THE ORD ER PASSED U/S 144 OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEA L BUT THE PRELIMINARY ISSUE RAISED IN THE PRESENT APPEAL IS V IDE GROUND NO.1, WHICH READS AS UNDER: 1. THE LD CIT(A) IS WRONG IN HOLDING THAT THE APPEAL IS NOT FILED IN TIME BY IGNORING THE FACT THAT THE APPEAL WAS FILED IN TIME BY ONE OF THE PARTNER AFTER OBTAINING CERTIFIED COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE, SO THE DATE OF COMMUNICATION OF ORDER SHOULD BE TAKEN AS DATE ON WHICH CERTIFIED COPY WAS RECEIVED BY THE AGGRIEVED PARTNER AND NOT FROM THE DATE OF AFFIXTURE. 2 3. THE PLEA OF THE LEARNED A.R. FOR THE ASSESSEE WA S THAT AFTER THE DISSOLUTION OF THE ASSESSEE FIRM ON 20.3.2008 ONE O F THE PARTNERS MR.INDER RAJ SINGH GREWAL HAD DISCONTINUED FROM THE BUSINESS AND OTHER PARTNER MR.K.S. BAJWA WAS THE ACTIVE PARTNER AND WA S INVOLVED IN FINALIZATION OF ACCOUNTS, AUDIT AND FILING OF ITR. EVEN BALANCE SHEET & ITRS WERE ALSO SIGNED BY MR.K.S.BAJWA. DURING THE ASSESSMENT PROCEEDINGS, MR.K.S.BAJWA LEFT THE COUNTRY AND WENT ABROAD WITHOUT INTIMATING ANYTHING ABOUT THE CASE TO THE AGGRIEVED PARTNER, MR.INDER RAJ SINGH GREWAL. THE ASSESSMENT IN THE CASE WAS COMPL ETED EX-PARTE UNDER SECTION 144 OF THE ACT AND ONLY ON 27.6.2011 THROUG H TELEPHONIC CALL FROM INCOME TAX INSPECTOR FROM HIS DELHI ADDRESS, M R.INDER RAJ SINGH GREWAL, EX-PARTNER OF THE ASSESSEE FIRM CAME TO KNO W ABOUT RECOVERY OF HUGE DEMAND CREATED AGAINST THE ASSESSEE FIRM. THE EX-PARTNER CLAIMS THAT ON 27.6.2011 HE WAS AT HIS LOCAL ADDRESS IN CH ANDIGARH AND CONTACTED THE ASSESSING OFFICER ON 28.6.2011 AND AF TER GETTING CERTIFIED COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE FILE D AN APPEAL BEFORE THE CIT (APPEALS). THE ORIGINAL ASSESSMENT ORDER A ND DEMAND NOTICE WERE SERVED BY AFFIXTURE ON THE CLOSED PREMISES OF THE FIRM AND CONSEQUENTLY THE APPEAL BEFORE THE CIT (APPEALS) CO ULD NOT BE FILED IN TIME AND WAS FILED AFTER TAKING CERTIFIED COPY OF T HE ORDER. AN AFFIDAVIT OF MR.INDER RAJ SINGH GREWAL NARRATING THE ABOVE SA ID FACTS HAS BEEN BEFORE US. THE CIT (APPEALS), HOWEVER, REJECTED TH E PLEA OF CONDONATION OF DELAY IN FILING THE APPEAL RAISED BY THE ASSESSE E AND DISMISSED THE APPEAL OF THE ASSESSEE AS BEING FILED AFTER THE EXP IRY OF PERIOD OF LIMITATION AND HENCE, MERITS TO BE DISMISSED IN LIM INE. 4. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT (APPEALS). THE LEARNED A.R. FOR THE ASSESSEE FILED WRITTEN SUB MISSIONS ALONGWITH AN AFFIDAVIT OF MR.INDER RAJ SINGH GREWAL IN RELATION TO CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE CIT (APPEALS) AND POINTED OUT THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHERE TH E ORIGINAL ASSESSMENT ORDER WAS NOT SERVED UPON THE ASSESSEE THOUGH SERVE D BY AFFIXTURE ON THE 3 CLOSED PREMISES OF THE FIRM, THE APPLICATION FOR CO NDONATION OF DELAY MERITS TO BE ALLOWED IN FAVOUR OF THE ASSESSEE AND THE APPEAL BE RESTORED TO THE CIT (APPEALS) FOR HEARING ON THE MERITS OF T HE ISSUES RAISED IN THE PRESENT APPEAL. 5. THE LEARNED D.R. FOR THE REVENUE PLACING RELIANC E ON THE ORDER OF THE CIT (APPEALS) OBJECTED TO THE SAME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE FIRM CONSTITUTED OF TWO PARTNERS, ONE OF W HICH IS THE AGGRIEVED EX-PARTNER OF THE ASSESSEE FIRM I.E. MR.INDER RAJ S INGH GREWAL. ON THE DISSOLUTION OF THE FIRM I.E. 20.3.2008 THE BUSINESS OF THE FIRM WAS CARRIED ON BY THE OTHER PARTNER OF THE FIRM MR.K.S. BAJWA WHO WAS ACTIVELY ENGAGED BOTH IN THE BUSINESS AND ALSO IN F ILING OF RETURNS ETC. THE BUSINESS WAS TAKEN OVER BY HIM. HOWEVER, MR.K. S.BAJWA LEFT THE COUNTRY AND WENT ABROAD. THE PLEA OF THE OTHER PAR TNER IS THAT HE DID NOT INTIMATE ANYTHING ABOUT THE CASE TO HIM. THE AFFID AVIT FILED BY MR.INDER RAJ SINGH GREWAL READS AS UNDER: AFFIDAVIT BEFORE THE HONBLE ITAT, CHANDIGARH BENCH B I, INDER RAJ SINGH GREWAL S/O JASWANT SINGH GREWA L R/0 H. NO 87, SECTOR- 8, CHANDIGARH DO HEREBY STATE ON OATH AND S OLEMNLY AFFIRM AS UNDER:- 1. THAT I WAS PARTNER OF M/S MEGA PACKAGES TILL 20/ 03/2008. 2. THAT I DISCONTINUED FROM THE BUSINESS AND THE OT HER PARTNER MR. K S BAJWA CONTINUED THE BUSINESS AS PROPRIETORS HIP AFTER DISSOLUTION OF THE FIRM. 3. THAT THE OTHER PARTNER, MR. K.S BAJWA WAS RESPON SIBLE FOR FILING ITR'S AND BALANCE SHEET OF THE FIRM. 4. THAT THE OTHER PARTNER, MR. K.S BAJWA LEFT THE C OUNTRY AND WENT ABROAD WITHOUT INTIMATING ANYTHING ABOUT THE C ASE TO ME. 5. THAT AT THE TIME OF ASSESSMENT PROCEEDINGS I WAS AVAILABLE AT MY LOCAL ADDRESS IN CHANDIGARH H. NO. 87, SECTOR 8, CHANDIGARH. 6. THAT MY LOCAL ADDRESS WAS WITHIN THE KNOWLEDGE O F AO BECAUSE HE HIMSELF HAS MENTIONED MY LOCAL ADDRESS A T PAGE 3, PARA 2 OF ASSESSMENT ORDER. 4 7. THAT DURING THE ASSESSMENT PROCEEDINGS ONLY ONE NOTICE WAS SENT AT MY DELHI ADDRESS WHICH COULD NOT COME TO MY NOTICE BECAUSE I WAS IN CHANDIGARH. 8. THAT I WAS NEVER INFORMED ABOUT THE PASSING OF A SSESSMENT ORDER AND THE ASSESSMENT ORDER WAS SERVED THROUGH A FFIXTURE AT THE CLOSED PREMISES OF THE ASSESSEE FIRM. 9. THAT I CAME TO KNOW ABOUT THE PASSING OF EX PART Y ASSESSMENT ORDER THROUGH TELEPHONIC CALL FROM INCOME TAX INSPE CTOR FROM MY DELHI ADDRESS REGARDING RECOVERY OF HUGE DEMAND CREATED AGAINST THE FIRM. 10. THAT ON 27/06/2011,1 WAS AT MY LOCAL ADDRESS AT CHANDIGARH SO I IMMEDIATELY CONTACTED THE LD. AO ON 28/06/2011 AND AFTER GETTING THE CERTIFIED COPY OF THE ORDER AND DEMAND NOTICE, I HAVE FILED THIS APPEAL. 7. IN THE ENTIRETY OF THE ABOVE SAID FACTS AS POINT ED OUT BY THE EX- PARTNER IN HIS AFFIDAVIT AND THE LEARNED A.R. FOR T HE ASSESSEE IN HIS WRITTEN SUBMISSIONS WE FIND MERIT IN THE CLAIM OF T HE ASSESSEE. THE ORIGINAL ASSESSMENT ORDER WAS SERVED BY AFFIXTURE O N THE CLOSED PREMISES OF THE BUSINESS OF THE FIRM ON 31.12.2010. THE ASS ESSMENT PROCEEDINGS WERE COMPLETED EX-PARTE UNDER SECTION 144 OF THE AC T AS NOTICE OF HEARING DURING THE COURSE OF ASSESSMENT PROCEEDINGS COULD NOT BE SERVED UPON THE ASSESSEE. THE GRIEVANCE OF EX-PARTNER, MR .INDER RAJ SINGH GREWAL, IS THAT HIS ADDRESS WAS AVAILABLE WITH THE DEPARTMENT AS THE SAME IS MENTIONED IN THE PARTNERSHIP/ DISSOLUTION D EED AND EVEN FOR THE RECOVERY OF DEMAND, CONTACTS WERE MADE BY THE INCOM E TAX INSPECTOR AT HIS DELHI ADDRESS. THE ASSESSEE APPLIED FOR CERTIF IED COPY ON 28.6.2011 AND FILED THE APPEAL BEFORE THE CIT (APPEALS) ON 29 .6.2011. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE FIND MERIT I N THE CLAIM OF THE ASSESSEE AND HENCE WE CONDONE THE DELAY IN FILING T HE APPEAL BEFORE THE CIT (APPEALS). HOWEVER, THE APPEAL IS RESTORED BAC K TO THE FILE OF THE CIT (APPEALS) TO DECIDE THE ISSUES ON MERITS OF THE PRESENT APPEAL. REASONABLE OPPORTUNITY OF HEARING SHALL BE AFFORDED TO THE ASSESSEE. THUS GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. WE ARE NOT ADDRESSING THE IS SUES RAISED BY THE 5 ASSESSEE ON MERITS AS THE APPEAL IS BEING RESTORED BACK TO THE CIT (APPEALS) TO BE DECIDED AFRESH. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF OCTOBER, 2012. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30 TH OCTOBER, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH