SHRI LIJU KURAIN , JAIPUR V. INCOME TAX OFFICER, WARD-5-4, JAIPUR

ITA 903/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8673 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K GUPTA ADV MIS
• Keywords: Period of limitation; Reasonable cause; Condonation of delay; Set aside
• Section: 271(1)(c); 142(1); 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 902 TO 905/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 & 2008-09 SHRI LIJU KURAIN A-29, ANAND VIHAR, GOPALPURA BYEPASS ROAD, JAIPUR-302018. CUKE VS. THE ITO, WARD-5(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANKPK4816 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI A.K. GUPTA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/07/2020 VKNS'K@ ORDER PER BENCH: THESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST FOUR SEPARATE ORDERS OF LD. CIT(A)-II, JAIPUR ARISING FR OM THE ASSESSMENT ORDERS PASSED U/S 144 R.W.S. 147 OF THE IT ACT AND PENALTY ORDERS PASSED U/S271(1)(C) OF THE IT ACT FOR THE ASSESSMEN T YEARS 2007-08 & 2008-09 RESPECTIVELY. ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 2 2. THERE IS DELAY OF 4 DAYS IN FILING THESE APPEALS THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHICH IS SUPPORTED BY AN AFFIDAVIT. 3. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR ON CO NDONATION OF DELAY. THE ASSESSEE HAS EXPLAINED THE CAUSE OF DELA Y AS THE ASSESSEE IS A OVERSEAS CITIZEN OF INDIA HOLDING PASSPORT OF AUS TRALIA. THEREFORE, DUE TO THE REASONS THAT THE ASSESSEE IS REMAINED OUTSID E INDIA, THE APPEALS COULD NOT BE FILED WITHIN THE PERIOD OF LIMITATION. THUS, THE LD. AR HAS PLEADED THAT THE DELAY MAY BE CONDONED. THE LD. DR OPPOSED TO THE CONTENTION OF DELAY AND SUBMITTED THAT THE REASONS EXPLAINED BY THE ASSESSEE IS SUFFICIENT OR REASONABLE CAUSE FOR DELA Y. 3.1 HAVING CONSIDERED THE REASONS EXPLAINED BY THE ASSESSEE AND PARTICULARLY THE FACT THAT THE ASSESSEE IS A HOLDER OF AUSTRALIAN PASSPORT AND IN THE INTEREST OF JUSTICE. THE DELAY OF 4 DAYS IN FILING THE APPEAL IS CONDONED. 4. ALL THE FOUR APPEALS WERE DECIDED BY THE LD. CIT (A) VIDE IMPUGNED EX-PARTE ORDER. EVEN THE ASSESSMENT ORDERS AS WELL AS THE PENALTY ORDERS WERE ALSO PASSED EX-PARTE BY THE AO DUE TO NON ATTENDANCE OF THE PROCEEDINGS BY THE ASSESSEE. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS A LIVIN G OUTSIDE INDIA, ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 3 THEREFORE, THE NOTICES ISSUED BY THE AO U/S 148 AS WELL AS U/S 142(1) OF THE IT ACT WERE NOT SERVED UPON THE ASSESSEE. EVEN THE ASSESSING OFFICER HAS ADMITTED THIS FACT THAT THE ASSESSEE WA S NOT RESIDING AT THE PLACE WHERE THE NOTICES WERE SENT BY THE AO. HE HAS REFERRED TO THE ASSESSMENT ORDERS AND SUBMITTED THAT THE NOTICE SEN T THROUGH SPEED POST WAS RETURN BACK WITH POSTAL REMARKS ADDRESSEE MOVED. THEREAFTER THE AO SENT NOTICES THROUGH SEVER WHO RE PORTED THAT AT THE GIVEN ADDRESS THE LANDLORD STATED THAT THE ASSESSEE WAS TENANT AND HE HAS VACATED THE HOUSE 6-7 YEARS BACK AND PRESENT WH EREABOUTS ARE NOT KNOWN. THEREFORE, THE NOTICES ISSUED BY THE AO U/S 148 AS WELL AS U/S 142(1) OF THE ACT WERE NOT SERVED UPON THE ASSESSEE . THE LD. AR HAS THUS SUBMITTED THAT THE REASSESSMENT FRAMED U/S 144 R.W.S. 147 OF THE ACT IS NOT VALID FOR WANT OF VALID SERVICE OF NOTIC E ISSUED U/S 148 AS WELL AS U/S 142(1) OF THE ACT. THE LD. AR HAS ALSO REFER RED AFFIDAVIT FILED BY THE ASSESSEE WHEREIN THE ASSESSEE AS STATED THAT TH E ASSESSEE WAS OUT OF INDIA WHEN THE NOTICES WERE ISSUED BY THE AO, TH EREFORE, ASSESSEE WAS NOT GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING EITHER BY THE AO OR BY THE LD. CIT(A) TO EXPLAIN THE SOURCE OF EXPENDIT URE INCURRED THROUGH CREDIT CARD. HE HAS FURTHER SUBMITTED THAT THE EXPE NDITURE WERE INCURRED BY THE ASSESSEE THROUGH THE CREDIT CARD GI VEN BY THE COMPANY ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 4 IN WHICH THE ASSESSEE IS WORKING AS AN EMPLOYEE AND THEREFORE, ALL THESE EXPENDITURE WERE INCURRED ON BEHALF OF THE CO MPANY. THEREFORE, ASSESSING INCOME IN THE HAND OF THE ASSESSEE OTHERW ISE NOT SUSTAINABLE WHEN THE CREDIT CARD WAS GIVEN BY THE COMPANY AND T HE EXPENDITURE WERE NOT INCURRED BY THE ASSESSEE IN HIS PERSONAL C APACITY. THUS LD. AR HAS SUBMITTED THAT THE ORDERS PASSED BY THE AUTHORI TIES BELOW MAY BE SET ASIDE. 5. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS ISSUED NOTICE AT THE ADDRESS WHICH IS A VAILABLE WITH THE DEPARTMENT AS PER PAN DATA BASE. THE ASSESSEE HAS M OVED OUT OF COUNTRY WITHOUT LIVING A FRESH ADDRESS. THEREFORE, IN THESE FACTS AND CIRCUMSTANCES THE AO HAD NO OPTION BUT TO ISSUE AN D SERVE THE NOTICE AT THE LAST KNOWN ADDRESS OF THE ASSESSEE. THE SERV ICE OF THE NOTICE ISSUED U/S 148 AS WELL AS U/S 142(1) WERE FINALLY A FFECTED THROUGH AFFIXATION WHICH IS ONE OF THE PRESCRIBED MODE UNDE R SECTION 282 OF THE IT ACT. THE LD. DR HAS SUBMITTED THAT THE AO CANNOT BE HELD AS FAULT WHEN THE ASSESSEE HIMSELF HAS LEFT INDIA WITHOUT LI VING THE FRESH ADDRESS. SHE HAS RELIED UPON THE ORDERS OF THE AUTH ORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AS SESSMENTS WERE ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 5 FRAMED BY THE AO U/S 144 R.W.S. 147 FOR THE ASSESSM ENT YEARS 2007-08 & 2008-09. THE AO HAS ACCEPTED THIS FACT THAT THE A SSESSEE WAS NOT AVAILABLE AT THE ADDRESS WHERE THE NOTICES ISSUED U /S 148 AS WELL AS U/S 142(1) OF THE ACT. THIS FACT HAS BEEN NARRATED BY T HE AO IN THE ASSESSMENT AS UNDER:- THE NOTICE SENT THROUGH SPEED POST WAS RETURNED BA CK WITH THE REMARKS OF THE POSTAL AUTHORITIES ADDRESSEE MOVED . THEREAFTER THE NOTICE WAS SENT THROUGH THE NOTICE SERVER, WHO REPORTED ON THE GIVEN ADDRESS, THE LANDLORD REPORTED HIM THAT T HE ASSESSEE WAS A TENANT AND HE HAS VACATED THE HOUSE 6-7 YEARS BACK AND THE PRESENT WHEREABOUTS JOF THE ASSESSEE IS NOT KNO WN. FINALLY THE NOTICE U/S 148 WAS ISSUED AND SERVED THROUGH AF FIXTURE 29.03.2014 FURTHER, NOTICE UNDER SEC. 142(1) ALONGW ITH QUESTIONNAIRE AND FOR RETURN DATED 02.02.2015 ISSUE D. AFTER KNOWING THE FACT THAT THE ASSESSEE IS NOT RESIDING AT THE A DDRESS WHERE THE NOTICE WAS SENT THROUGH SPEED POST THE AO ATTEMPTED TO SERVE THE NOTICE THROUGH ALTERNATIVE MODE OF AFFIXT URE. SINCE, THE ASSESSEE HAS NOT LEFT HIS CURRENT ADDRESS OR ANY OT HER ADDRESS WHERE THE AUTHORITIES CAN SEND THE COMMUNICATION OR NOTIC E, THEREFORE, THE ASSESSING OFFICER CANNOT BE HELD AS FAULT FOR THE S ERVICE AFFECTED THROUGH AFFIXATION AT THE LAST NON ADDRESS. HENCE, IN THE FACTS AND ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 6 CIRCUMSTANCES OF THE CASE THE CONTENTION OF THE LD. AR CANNOT BE ACCEPTED THAT THE ASSESSMENT ORDERS FRAMED BY THE A O FOR WANT OF VALID NOTICE IS VOID AND LIABLE TO SET ASIDE. HOWEVER, TH E APPEALS FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDERS WERE DISMISS ED BY THE LD. CIT(A) DUE TO THE DELAY IN FILING THE APPEAL. THE L D. CIT(A) THUS, HELD THAT THESE APPEALS FILED BY THE ASSESSEE ARE NOT MA INTAINABLE. IT IS PERTINENT TO NOTE THAT WHEN THE ASSESSEE WAS UNDISP UTEDLY OUT OF INDIA AND RESIDING IN AUSTRALIA AND HAS NOT RECEIVED THE NOTICES ISSUED BY THE AO AS WELL AS ASSESSMENT ORDERS PASSED U/S 144 R.W. S. 147 OF THE ACT THEN THE REASONS EXPLAINED BY THE ASSESSEE FOR DELA Y IN FILING THE APPEALS OUGHT TO HAVE BEEN ACCEPTED AS A REASONABLE CAUSE. THE AO HAS ACCEPTED THE FACT THAT THE ASSESSEE VACATED THE PREMISES AT WHICH THE ASSESSEE WAS EARLIER LIVING AS A TENANT AS BACK AS 6-7 YEARS BACK FROM THE DATE OF THE NOTICE ISSUED U/S 148 OF THE ACT. EVEN OTHERWISE THE ASSESSEE HAS EXPLAINED THE REASONS FOR DELAY I N THE AFFIDAVIT THAT HE WAS OUT OF INDIA AND HOLDING PASSPORT OF AUSTRAL IA. IN THE ABSENCE OF RECEIPT OF NOTICE AS WELL AS ORDERS BY THE ASSESSEE THERE WAS A DELAY IN FILING THE APPEALS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE SATISFIED THAT THE ASSESSEE HAS EXPLAIN ED A REASONABLE ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 7 CAUSE FOR DELAY IN FILING THE APPEAL ACCORDINGLY, T HE DELAY IN FILING THE APPEALS BEFORE THE LD. CIT(A) IS CONDONED. 7. SINCE, THE LD. CIT(A) HAS NOT DECIDED THE APPEAL S OF THE ASSESSEE ON MERITS, THEREFORE, THE APPEALS ARISING FROM THE EX- PARTE ORDERS ARE SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR GIVIN G ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE TO EXPLAIN THE SOURCE OF PAYMENT MADE THROUGH CREDIT CARD. 8. THE PENALTY ORDERS PASSED U/S 271(1)(C) OF THE A CT WERE ALSO EX- PARTE ORDER AS NOBODY HAS APPEARED AND THE REASONS FOR NON APPEARANCE ARE THE SAME AS EXPLAINED BY THE ASSESSE E IN RESPECT OF THE QUANTUM OF APPEALS. THE LD. CIT(A) DISMISSED THE AP PEAL BY TREATING THE SAME AS NOT MAINTAINABLE DUE TO DELAY. WE HAVE ALREADY CONSIDERED THE REASONS FOR DELAY IN FILING THE APPEALS IN THE QUANTUM APPEALS ACCORDINGLY, THESE BEING THE CONSEQUENTIAL TO THE Q UANTUM PROCEEDINGS, THE APPEALS ARISING FROM THE PENALTY ORDERS ARE ALS O SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRE SH AFTER GIVING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS DISPOSAL OF THE QUANTUM APPEALS. ITA NO. 902 TO 905/JP/2019 SHRI LIJU KURAIN VS. ITO 8 IN THE RESULT, ALL FOUR APPEALS FILED BY THE ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/07/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/07/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI LIJU KURAIN, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(4), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 902 TO 905/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR