Sh. Raj Kumar Through Sh. Kapil Dev, Delhi V. ITO, New Delhi

ITA 851/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3303 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-05-2017
• Assessment Year: 1996-1997
• Appeal Filed On: 18-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 56

Judgement Text

PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - SMC NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO.851/DEL/2016 ASSESSMENT YEAR : 1996-97 RAJ KUMAR THROUGH SH. KAPIL DEV C/O SURESH & ASSOCIATES, 3-A, BIGJOS TOWER, NETAJI SUBHASH PLACE, PITAMPURA, DELHI 110 034 PAN AAJPK5382L VS. ITO WARD-38 (2) NEW DELHI. (APPELLANT) (RESPONDENT) PER BHAVNESH SAINI, JUDICIAL MEMBER ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A) XX NEW DELHI DATED 27.11.2014 FOR ASSESS MENT. YEAR 1996- 97. 2. I HAVE HEARD LD. REPRESENTATIVE OF THE PARTIES A ND PERUSED THE AUTHORITIES BELOW. 3. LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE HOLD ING THAT APPEAL OF ASSESSEE WAS TIME BARRED BY 10 YEARS 1 MONTH AN D 18 DAYS. ASSESSEE BY : SHRI SURESH KUMAR GUPTA, CA DEPARTMENT BY: MS.BEDOBNI, SR. DR DATE OF HEARING 02/05/2017 DATE OF PRONOUNCEMENT 5/5/2017 ITA NO. 851/DEL/2016 RAJ KUMAR VS. ITO PAGE 2 OF 6 4. THE FACTS OF THE CASE ARE THAT ASSESSMENT IN THI S CASE WAS COMPLETED ON TOTAL INCOME OF RS. 40,39,670/- ON 30 TH MARCH, 1991. LD. CIT(A) CONFIRMED THE ADDITION OF RS. 35,50,000/- ON ACCOUNT OF CASH CREDIT. THE TRIBUNAL VIDE ORDER DATED 22 ND NOVEMBER, 2000 SET ASIDE THE MAIN ISSUE OF ADDITION OF RS. 35,50,000/- ON ACCOUN T OF CASH CREDITS. THE ASSESSING OFFICER ISSUED STATUTORY NOTICES AND IN R ESPONSE THERETO SHRI NEERAJ KARWALL, CA ATTENDED PROCEEDING BEFORE ASSES SING OFFICER AND HE WAS ASKED TO FILE THE DETAILS. THEREAFTER THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE. THE ASSESSING OFFICER ISS UED SEVERAL STATUTORY NOTICES TO THE ASSESSEE AND EVEN NOTICE WAS SERVED THROUGH AFFIXTURE. THE ASSESSEE HOWEVER DID NOT APPEAR. THE ASSESSING OFFICER PASSED EX PARTE ASSESSMENT ORDER DATED 27 TH MARCH, 2002 AND PREPARED A NOTICE OF DEMAND U/S 56 OF I.T. ACT ON 28 TH MARCH, 2002. THE INCOME WAS COMPUTED AT RS. 39,80,780/-. 5. THE ASSESSEE FILED THE APPEAL BEFORE LD. CI T(A) ON 18 TH JUNE, 2012. LD. CIT(A) NOTED FOR THE RECORD THAT ALONGWIT H A COPY OF DEMAND NOTICE, THERE IS A COPY OF SPEED POST RECEIPT OF DE PARTMENT OF POST SHOWING THAT THE ORDER HAS BEEN DISPATCHED THROUGH SPEED POST NO. ED 200565731 IN DATED 28 TH MARCH, 2002. THUS THERE IS A CONTRADICTION IN THE DATE OF SERVICE AS PER CLAIM OF ASSESSEE AND AS APPARENT FROM THE DEMAND NOTICE / SPEED POST RECEIPT. LD. CIT(A) AFT ER PERUSAL OF THE RECORD NOTED THAT THE ASSESSMENT ORDER HAS BEEN SEN T TO ASSESSEE ON 28 TH MARCH, 2002 THROUGH SPEED POST BUT ASSESSEE CLAIME D THAT APPEAL ITA NO. 851/DEL/2016 RAJ KUMAR VS. ITO PAGE 3 OF 6 FILED ON 18 TH JUNE, 2012. THERE IS NO APPLICATION FILED FOR COND ONATION OF DELAY. THE EXPLANATION OF THE ASSESSEE IN THIS REGA RD WAS SOUGHT. THE ASSESSEE DID NOT DISPUTE THAT ASSESSMENT ORDER WAS SENT THROUGH SPEED POST ON 28 TH MARCH, 2002 AT THE CORRECT ADDRESSEE OF THE ASSES SEE. THE ASSESSEE ALSO DID NOT DISPUTE THAT AS PER SECTION 2 7 OF THE GENERAL CLAUSE ACT THERE IS A DEEMED SERVICE OF ASSESSMENT ORDER UPON THE ASSESSEE. THE ASSESSEE HOWEVER EXPLAINED THAT HE HA D MIGRATED TO UK ON 14 TH MAY 1998 AND THEREFORE HE WAS NOT PRESENT IN INDI A. THEREFORE THERE IS NO SERVICE OF ASSESSMENT ORDER UPON HIM. T HE ASSESSEE WAS ASKED TO PRODUCE COPY OF PASSPORT TILL DATE ALONGWI TH COPY OF THE BANK ACCOUNT MAINTAINED IN INDIA. THE ASSESSEE PRODUCED THE COPY OF THE PASSPORT ON 13 TH AUGUST, 2014, HOWEVER NO COPY OF THE PASSPORT FOR THE RELEVANT PERIOD OF YEAR 1998 TO 2005 WAS FILED. THE ASSESSEE THUS FAILED TO PRODUCE COPY OF THE PASSPORT FOR THE RELEVANT PE RIOD BEFORE LD. CIT(A). THE REPORT FROM THE ASSESSING OFFICER WAS A LSO CALLED FOR REGARDING SERVICE OF THE ASSESSMENT ORDER UPON ASSE SSEE. THE ASSESSING OFFICER EXPLAINED THAT ASSESSMENT ORDER W AS SERVED UPON ASSESSEE THROUGH SPEED POST VIDE RECEIPT DATED 28 TH MARCH, 2002 AND THE ORDER WAS SENT AT THE CORRECT ADDRESS OF THE AS SESSEE. IT WAS ALSO CONFIRMED THAT SPEED POST LETTER CONTAINING THE ASS ESSMENT ORDER DID NOT RECEIVE UNSERVED. 6. LD. CIT(A) CONSIDERING THE MATERIAL ON RECORD NOTED THAT THERE IS A GROSS CONTRADICTION IN THE CLAIM OF THE ASSESS EE AS NOT ONLY THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 1998-99 WHEREIN THE ORDER ITA NO. 851/DEL/2016 RAJ KUMAR VS. ITO PAGE 4 OF 6 WAS ISSUED ON 28 TH MARCH, 2001 WAS DULY ATTENDED BY ASSESSEE BUT THE ORDER HAS ALSO BEEN RECEIVED ON BEHALF OF THE ASSES SEE. THEREFORE THE CLAIM THAT HE HAS LEFT INDIA IN 1998 AND HE WAS NOT REPRESENTED BY ANY AUTHORIZED PERSON WAS NOT PROVED. THE ASSESSEE WAS NOT ABLE TO SHOW THAT ORDER FOR THE RELEVANT ASSESSMENT YEAR WAS NOT RECEIVED BY HIM. IT WAS ALSO OBSERVED THAT ASSESSEE HAD FILED COPY OF G PA GIVEN TO HIS BROTHER SHRI KAPIL DEV RESIDING AT THE SAME ADDRESS OF THE ASSESSEE WHEREIN HE WAS AUTHORIZED TO DO ALL THE THINGS AND ALSO TO FILE APPEALS, APPLICATION ETC. LD. CIT(A) THEREFORE NOTED THAT TH E ASSESSMENT ORDER AND DEMAND NOTICE SENT BY SPEED POST ON 28 TH MARCH, 2002 HAVE BEEN SERVED UPON BY THE ASSESSEE AT THE CORRECT ADDRESS. THE ASSESSEE DID NOT FILE ANY APPLICATION IN CONDONATION OF DELAY. T HEREFORE IT WAS HELD THE APPEAL IS TIME BARRED BY 10 YEARS 1 MONTH AND 1 0 DAYS. THE APPEAL WAS THEREFORE DISMISSED AS NOT MAINTAINABLE BEING T IME BARRED. 7. LD. COUNSEL FOR ASSESSEE REITERATED THE SUB MISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT SHRI NEERAJ KA RWALL, CA ATTENDED THE PROCEEDINGS BEFORE ASSESSING OFFICER WHO WAS AN ASSOCIATE OF SHRI NITYANAND TREHAN CA WHO HAD EXPIRED ON 8 TH MAY, 2011 AND THE ASSOCIATION OF CAS BROKE OFF. THE ASSESSEE WAS NOT AWARE OF ANY PROCEEDINGS THEREFORE ASSESSEE WAS NOT AWARE OF THE SERVICE OF ASSESSMENT ORDER. ON THE OTHER HAND LD. DR RELIED U PON THE IMPUGNED ORDER. ITA NO. 851/DEL/2016 RAJ KUMAR VS. ITO PAGE 5 OF 6 8. I HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT THE ASSESSEES COUNSEL SHRI NEERAJ KARWALL, CA ATTENDED THE ASSESSMENT PROCEEDINGS BEFORE ASSESSING OFFICER AND HE WAS ASK ED TO FILE THE COMPLETE DETAILS. THE APPEARANCE OF LD. COUNSEL FOR ASSESSEE BEFORE ASSESSING OFFICER PROVE THAT ASSESSEE WAS AWARE OF THE ASSESSMENT PROCEEDINGS PENDING BECAUSE THE COUNSEL APPEARED BE FORE THE ASSESSING OFFICER AT ASSESSMENT STAGE ON BEHALF OF THE ASSESS EE . THE ASSESSEE DID NOT DISPUTE THAT HE HAS ENGAGED SHRI NEERAJ KARWALL ., CA TO APPEAR BEFORE ASSESSING OFFICER AT THE ASSESSMENT PROCEEDI NGS. THERE ARE LIMITATION PROVIDED TO PASS THE ASSESSMENT ORDER IN SET ASIDE PROCEEDINGS WITHIN LIMITED PERIOD. THEREFORE THE AS SESSEE SHOULD HAVE VERIFY THE FACT FROM HIS COUNSEL ABOUT THE FATE OF THE ASSESSMENT ORDER PASSED ON 27 TH MARCH, 2002. THE ASSESSEE HOWEVER EXPLAINED BEFORE LD. CIT(A) THAT HE HAD MIGRATED TO UK ON 14 TH MAY, 1998 AND THEREFORE HE WAS NOT PHYSICALLY PRESENT DURING THE RELEVANT PERI OD. THE ASSESSEE HOWEVER DID NOT PRODUCE THE COPIES OF THE PASSPORT BEFORE LD. CIT(A)FOR THE PERIOD 1998 TO 2005. THUS THE PLEA TAKEN BY ASS ESSEE THAT HE WAS AWAY FROM INDIA DURING THE RELEVANT PERIOD WAS NOT PROVED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. THE ASSESSEE DID NO T DISPUTE PASSING AN EX PARTE ORDER ON 28 TH MARCH, 2002 AND SENDING A COPY OF THE SAME THROUGH SPEED POST AT THE CORRECT ADDRESS OF THE AS SESSEE. THERE IS NO DENIAL OF ASSESSEE THROUGH ANY EVIDENCE THAT THE AS SESSMENT ORDER WAS NOT SERVED UPON HIM IN THE YEAR 2002. THE ASSESSEE ALSO PRODUCED COPY OF THE GPA EXECUTED IN FAVOUR OF HIS BROTHER WHO W AS RESIDING AT THE ITA NO. 851/DEL/2016 RAJ KUMAR VS. ITO PAGE 6 OF 6 SAME ADDRESS OF THE ASSESSEE WHEREBY HE WAS AUTHORI ZED TO FILE APPEALS, APPLICATION ETC. THE ASSESSING OFFICER ALS O CONFIRMED IN HIS REPORT TO THE LD. CIT(A) THAT THE ASSESSMENT ORDER SENT THROUGH SPEED POST COVER WAS NOT RECEIVED BACK UNSERVED BY THE IN COME TAX DEPARTMENT. THESE FACTS THEREFORE CLEARLY PROVE THA T THE ASSESSMENT ORDER WAS VALIDLY SERVED UPON TO THE ASSESSEE THROU GH SPEED POST IN THE YEAR 2002. THUS THE APPEAL WAS CLEARLY TIME BARRED BY 10 YEARS 1 MONTH AND 18 DAYS. THE ASSESSEE DID NOT FILE ANY APPLICAT ION FOR CONDONATION OF DELAY AND NO SUFFICIENT MATERIAL WAS PRODUCED BEFOR E LD. CIT(A) TO EXPLAIN DELAY IN FILING THE APPEAL TO THE SATISFA CTION OF THE LD. CIT(A). LD. CIT(A) WAS THEREFORE JUSTIFIED IN HOLDING THAT APPEAL OF ASSESSEE IS TIME BARRED AND IS NOT MAINTAINABLE. NO INTERFERENC E IS CALLED FOR IN THE MATTER. THE APPEAL OF ASSESSEE IS THEREFORE DISMISS ED. IN THE RESULT THE APPEAL OF ASSESSEE IS D ISMISSED. PRONOUNCED IN THE OPEN COURT. SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER DATED: 05/05/2017 *VEENA* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR