SMT. PARMINDER KAUR BEDI, V. CIT, Kota

ITA 908/JPR/2012

• Counselvise Citation: 90823114 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROLEE AGARWAL
• Assessee Lawyers: M IQBAL
• Keywords: Principle of natural justice; Condonation of delay; Revised return
• Section: 143(3); 148; 54; 263; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 908/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 SMT. PARMINDER KAUR BEDI PROP. M/S CAP-A PIE (BEAUTY SALON) SUNNY ENCLAVE, ABOVE HONEY ZIM, MOHALI (PUNJAB) (EARLIER AT 1-D-8A (SFS) TALWANI, KOTA. CUKE VS. COMMISSIONER OF INCOME TAX, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AFYPB 2873 B VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI SIDDARTH RANKA & SHRI M. IQBAL (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROLEE AGARWAL (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/03/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 20/03/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 07/03/2012 BY THE LEARNED COMMISSIONER OF INCOME TA X, KOTA FOR A.Y. ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 2 2008-09 PASSED U/S 263 OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2. IN THIS CASE, NOTICE U/S 148 OF THE ACT WAS ISSU ED ON 06/01/2010 AS THE ASSESSEE SOLD A PLOT ON 07/1/2008 BUT NO CAP ITAL GAIN WAS DECLARED IN THE ORIGINAL RETURN OF INCOME. THE ASSES SEE FILED RETURN IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT AND WORKIN G OF CAPITAL GAIN WAS GIVEN IN COMPUTATION OF TOTAL INCOME. THE ASSESSE E HAS SHOWN CONSTRUCTION IN THE SOLD HOUSE PROPERTY IN THE F.Y. 2002-03 TO 2006-07 AND CLAIMED IT IN THE COST OF HOUSE PROPERTY. THE AS SESSEE ALSO CLAIMED INVESTMENT IN THE NEW HOUSE PROPERTY U/S 54 OF THE A CT FOR RS. 18,50,000/-. AFTER CLAIMING THESE DEDUCTIONS, THE C APITAL GAIN WAS DECLARED AT NIL IN THE RETURN OF INCOME. THE ASSESSI NG OFFICER VIDE HIS ORDERSHEET ENTRY DATED 09/3/2010 HAD DROPPED THE PR OCEEDING INITIATED U/S 148 OF THE ACT. THE LEARNED CIT ISSUED NOTICE U/ S 263 OF THE ACT TO THE ASSESSEE ON 03/2/2012. THE CONTENTS OF THE NOTIC E IS AS UNDER:- THE ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 148 OF THE I.T. ACT 1961 DATED 06.01.2010 BY THE INCOME TAX OFFICER, WARD 1(2), KOTA IN YOUR CASE FOR THE ASSES SMENT YEAR 2008-09 IS DROPPED BY THE INCOME TAX OFFICER, WARD 1 (2), KOTA ON ORDER SHEET ENTRY DATED 09.03.2010 WITHOUT VERIFYING ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 3 THE RETURN FILED BY YOU ON 04.03.2010 IN RESPONSE T O NOTICE U/S 148 OF I.T. ACT. THE A.O. SHOULD HAVE MAKE ASSESS MENT ON THE RETURN FILED BY YOU THEREFORE, DROPPING PROC EEDINGS ON ORDER SHEET IS FOUND TO BE ERRONEOUS IN SO FAR AS I T IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE ASSESSEE DID NOT APPEAR BEFORE THE LEARNED CIT N OR FILED ANY WRITTEN SUBMISSION, THEREFORE, CASE WAS DECIDED ON TH E BASIS OF FACTS OF THE CASE AND MATERIAL AVAILABLE ON THE RECORD. IT I S FOUND THAT THE ASSESSEE FILED RETURN AGAINST THE NOTICE ISSUED U/S 148 OF THE ACT ON 04/3/2010 IN WHICH THE INCOME ORIGINALLY RETURNED AT RS. 1,56,700/- WAS REDUCED TO RS. 1,34,720/-. THE LIC COMMISSION RECEIP T, WHICH WAS SHOWN AT RS. 30,670/- IN THE ORIGINAL RETURN WAS REDU CED TO NIL. THE INTEREST INCOME, WHICH WAS DECLARED AT RS. 529/- WAS E NHANCED TO RS. 9,326/- IN THIS RETURN. THE DETAILS REGARDING WORKING OF THE CAPITAL GAIN HAS ALSO BEEN FURNISHED IN THIS RETURN. AS PER THES E DETAILS, THE ASSESSEE SOLD ITS RESIDENTIAL HOUSE AT TALWANDI ON 07/1/2008 F OR RS. 36,51,000/- BUT AS PER SECTION 50-C, THE VALUE ADOPTED AT RS. 4 2,26,622/-. AFTER REDUCING THE INDEXED COST OF THE SAID PROPERTY TAKE N AT RS. 25,08,274, THE CAPITAL GAIN WAS SHOWN AT RS. 17,18,348/-. EVEN T HIS CAPITAL GAIN WAS CLAIMED AS FULLY EXEMPT BY ASKING FOR DEDUCTION OF RS. 17,18,348/- U/S 54 OF THE ACT. AS PER RECORDS AVAILABLE, THE AS SESSEE HAD PURCHASED ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 4 A PLOT OF LAND NEAR CHANDIGARH ON 04/2/2008 FOR RS. 10 LACS. THEN SHE CLAIMED THAT SHE ENTERED INTO A CONTRACT WITH ONE SH RI MILKHA SINGH, SON OF SHRI HARI SINGH, RESIDENT OF JALANDHAR TO CONSTR UCT A HOUSE ON THIS PLOT AND CLAIMED TO HAVE PAID RS. 7,50,000/- TO HIM TOWARDS CONSTRUCTION. IN SUPPORT OF COST OF PURCHASE OF THE SAID PLOT, THE ASSESSEE FILED A COPY OF THE REGISTERED PURCHASE DE ED, ON THE BASIS OF THESE TWO DOCUMENTS, THE DEDUCTION WAS CLAIMED U/S 54 OF THE ACT IN THE FRESH RETURN OF INCOME OF RS. 17,18,348/-. HOWEV ER, IN THE AGREEMENT DATED 08/02/2008, THE COPY OF DEMAND MADE TO SHRI MILKHA SINGH, CONTRACTOR OF RS. 7,50,000/- FOR CONSTRUCTIO N OF HOUSE IS NOT MENTIONED AND THE COMPLETE ADDRESS OF THE CONTRACTO R SHRI MILKHA SINGH HAS ALSO NOT BEEN GIVEN. THE AGREEMENT APPEAR S TO BE CONCOCTED UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. NO D ETAILS OF CONSTRUCTION AS PER THE CONTRACT HAVE BEEN PROVIDED AND THE PAYMENTS MADE TO THE CONTRACTOR IS ALSO NOT SUBSTANTIATED. C ONTRACTOR SHRI MILKHA SINGH IS FROM DISTRICT JALANDHAR WHEREAS LAND IS SIT UATED NEAR CHANDIGARH. THE LEARNED CIT OBSERVED THAT THE LEARNE D ASSESSING OFFICER SHOULD HAVE EXAMINED THESE DETAILS BEFORE A CCEPTING THE REVISED RETURN OF THE ASSESSEE AND DROPPING THE PROCEEDING INITIATED U/S 148 OF THE ACT. HE IS NOT EVEN EXAMINED THE BANK ACCOUNT O F THE ASSESSEE. IN ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 5 SPITE OF THE FACT THAT THE SALE CONSIDERATION OF TH E PROPERTY OF THE ASSESSEE AT TALWANDI, KOTA HAS BEEN MAINLY RECEIVED T HROUGH CHEQUE EXCEPT AN AMOUNT OF RS. 51,000/- RECEIVED IN CASH. HENCE THE ORDER OF THE ASSESSING OFFICER DROPPING THE PROCEEDING INITI ATED U/S 148 OF THE ACT DATED 09/3/2010 MERELY AFTER FIVE DAYS OF FILIN G OF REVISED RETURN, IS BOTH ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF T HE REVENUE. AS THE ASSESSING OFFICER HAD FAILED TO MAKE NECESSARY INQU IRY WHICH WERE CALLED FOR UNDER THE CIRCUMSTANCES OF THE CASE. THE ASSESSING OFFICER HAS SIMPLY ACCEPTED WHAT THE ASSESSEE HAD STATED IN RETURN FILED ON 04/3/2010. HE, HOWEVER, RELIED ON THE CASE OF RAMPY ARI DEVI SARAOGI VS. CIT 67 ITR 84 (S.C.). THE MEANING OF ERRONEOUS U/S 263 INCLUDES CASES WHERE THERE HAS BEEN FAILURE TO MAKE THE NECES SARY INQUIRY, WHICH IS INCUMBENT ON THE ASSESSING OFFICER TO INVES TIGATE THE FACT STATED IN THE RETURN WHEN CIRCUMSTANCES WOULD MAKE SU CH AN INQUIRY PRUDENT AND THE WORD ERRONEOUS IN SECTION 263 IN CLUDES THE FAILURE TO MAKE SUCH AN INQUIRY. HE FURTHER RELIED UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF SMT. TARADEVI AGA RWAL VS. CIT (1973) 88 ITR 232 (SC) AND MALABAR INDUSTRIAL COMPANY LTD. VS. CIT (2000) 243 ITR 323 (SC). THIS ORDER IS ALSO PREJUDICIAL TO T HE INTEREST OF THE REVENUE. HE ALSO RELIED ON THE DECISION OF THE HON BLE KERALA HIGH COURT ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 6 IN THE CASE OF BISMILLAH TRADING CO. VS. INTELLIGENC E OFFICER 248 ITR 292 (KER.). AS PER PROVISIONS OF SECTION 148 OF THE ACT ONCE A NOTICE IS ISSUED U/S 148 OF THE ACT BY ANY ASSESSING OFFICER, HE CAN MAKE AN ASSESSMENT U/S 143(3) OR 144 OF THE ACT OR REASSESS MENT OR RE-COMPUTATION OF INCOME ONLY. HE IS NOT EMPOWERED TO DROP THE PROCEEDING OTHERWISE THAN INITIATION WHERE THE NOTICE ISSUED IS TECHNICALLY INVALID OR VOID AB INITIO. IN THIS CASE , WHEN THE ASSESSEE FILED A FRESH RETURN IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE ASSESSING OFFICER WAS LEGALLY BOUND ONLY TO COMPLETE THE REASSESSMENT EITHER U/S 143(3) OR 144 OF THE ACT. FOR THIS REASO N ALSO, THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AS WELL AS PREJUD ICIAL TO THE INTEREST OF THE REVENUE AND IS THUS, LIABLE TO BE CANCELLED. THEREFORE, THE LEARNED CIT HAS HELD THE DROPPING THE PROCEEDING ON ORDERSHEET ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. ACCORDINGLY, NOTICE ISSUED U/S 148 DATED 06/1/2010 WAS HELD TO BE VALID. HOWEVER, SINCE THE TIME LIMIT FOR COMPLETING THE ASSESSMENT IN PURSUANCE OF THAT NOTICE U/S 148 OF THE ACT WAS OVER ON 31/12/2010 AS PER THE PROVISIONS OF SECTION 153(2) PROVISO-2 BELOW IT, THE ASSESSING OFFICER WAS DIRECTED TO ISSUE FRESH NOTICE U/S 148 OF THE ACT TO REASSES S THE INCOME OFFERED ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 7 BY THE ASSESSEE IN THE RETURN FILED BY HER ORIGINAL LY AND THEN IN RESPONSE TO NOTICE U/S 148 OF THE ACT ON 04/3/2010. 3. THE ASSESSEE CHALLENGED 263 ORDER IN FOLLOWING GRO UNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX, KOTA GROSSLY ERRED IN PASSING AN ORDER U/S 163 DATED 07.03.2012 AND IN HOLDING THAT THE RE-ASSESSMENT MADE BY THE LEARN ED ASSESSING OFFICER IS FOUND TO BE ERRONEOUS IN SO FA R AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 1.1 THAT THE ASSESSEE-APPELLANT HAVING SHIFTED TO MO HALI (PUNJAB) LONG BACK, NO NOTICE HAVING BEEN RECEIVED/SERVED ON THE ASSESSEE THEREFORE THE VERY INITIATION OF PROCEEDING IS ILLEGAL, IS BAD IN LAW I S IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND DESE RVES TO BE QUASHED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX, KOTA ONLY ON THIS BASIS THAT DROPPING PROCEEDINGS ON ORDER SHEE T IS FOUND TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIA L TO THE INTEREST OF REVENUE IS WHOLLY UNJUSTIFIED, BAD IN LAW AND SUCH AN ORDER BEING BAD IN LAW DESERVES TO BE QUASHE D. ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 8 2.1 THAT THE LEARNED ASSESSING OFFICER ACTING ON THE RETURN IN PURSUANCE TO NOTICE U/S 148 HAVING BEEN SATISFIE D AS TO CORRECTNESS AND COMPLETENESS OF THE RETURN OF INCOME, DROPPED THE PROCEEDINGS WHICH WAS JUST AND PROPER AND UNDER THE ACT THERE IS NO REQUIREMENT OF PASSING OF AN ORDER THEREFORE THE INITIATION OF PROCEEDINGS U/S 263 ONLY ON THIS PREMISE IS UNJUSTI FIED, BAD IN LAW AND THEREFORE THE INITIATION, AS WELL AS PROCEEDINGS AS WELL AS THE ORDER DESERVES TO BE QUASHED. 2.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX, KOT A HAS NOT ASSIGNED ANY REASON EXCEPT THAT THE LEARNED ASSESSING OFFICER WAS NOT EMPOWERED TO DROP THE PROCEEDINGS THEREFORE SUCH AN ACTION IS NEITHER ERRONEOUS NOR IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SUCH DROPPING OF THE PROCEEDING WAS JUST AND PROPER AND THEREFORE HE OUGHT NOT TO HAVE BEEN QUASHED AND REDIRECTED TO ISSUE NOTICE U/S 148 WHICH IS IMPERMISSIBLE IN LAW. 2.3 THAT THE NOTICE AS WELL AS ORDER HAVING NOT BEEN PROPERLY SERVED IS IN VIOLATION OF PRINCIPLES OF NA TURAL JUSTICE AND DESERVES TO BE QUASHED/CANCELLED. ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 9 2.4 THAT THE LEARNED CIT HAS GONE ON ASSUMPTIONS, PRESUMPTIONS, CONJECTURE AND SURMISES WHICH IS BAD I N LAW. 3. THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER AND MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. THE APPEAL FILED BY THE ASSESSEE IS BELATED BY MORE THAN 215 DAYS. THE ASSESSEE FILED CONDONATION OF DELAY PETITION AND FI LED AN AFFIDAVIT OF SHRI R.S. AGESHWAR, ADVOCATE FOR THE ASSESSEE. THE CONTENT S OF THE AFFIDAVIT IS REPRODUCED AS UNDER:- I, R.S. AGESHWAR, AGED ABOUT 65 YEARS, S/O LATE SHRI MADAN LALJI AGESHWAR, RESIDENT OF 2-C, BALLABH BARI, GUMANPURA, KOTA (RAIASTHAN) PIN: 324007 DO HEREBY DECLARE ON SOLEMN AFFIRMATION AS UNDER:- 1. THAT I AM AN ADVOCATE PRACTICING ON TAXATION LAWS SINCE LAST MORE THAN 40 YEARS. 2. THAT I HAD AN OCCASION OF HANDLING THE CASE OF SMT. PARMINDER KAUNR BEDI, W/O- SHRI SURENDRA SINGH BEDI , WHO WAS RESIDING AT 1-D-8A (SFS) TALWANDI, KOTA. 3. THAT I HAD FURNISHED SMT. PARMINDER KAUR BEDI'S RETURN OF INCOME FOR THE ASSESSMENT YEAR UPTO 2010-11 WHICH W AS LAST SUBMITTED ON 15.03.2011. AT THE TIME OF FURNISHING OF HER RETURN FOR THE ASSESSMENT YEAR 2010-11 IT WAS CONVEYED TO M E BY SMT. ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 10 PARMINDER KAUR BEDI AND HER HUSBAND THAT SINCE THEY HAVE SOLD THEIR PROPERTY AT KOTA AND AS THE BUSINESS WAS NOT D OING WELL THEREFORE THEY HAVE SHIFTED TO MOHALI (PUNJAB) WHER E THEY HAVE CONSTRUCTED A RESIDENTIAL HOUSE AND STARTED LIVING THERE. NO MATTER WAS PENDING AFTER FURNISHING OF THIS RETURN F OR THE ASSESSMENT YEAR 2010-11. 4. THAT SOMEWHERE IN THE FIRST WEEK OF FEBRUARY, 2012, INSPECTOR/NOTICE SERVER FROM THE OFFICE OF THE COMM ISSIONER OF INCOME TAX, KOTA CAME WITH A NOTICE U/S 263 OF THE IN COME TAX ACT DATED 07.03.2012 FOR THE ASSESSMENT YEAR 2008-2 009. I INFORMED THE NOTICE SERVER THAT I AM NOT THE COMPET ENT PERSON ON WHOM THIS NOTICE IS TO BE SERVED AS I AM NOT IN T OUCH WITH SMT. PARMINDER KAUR BEDI FOR THE PAST MORE THAN A Y EAR AND THAT I HAVE HANDED OVER ALL THE FILES & RECORDS TO SMT. PARMINDER KAUR BEDI AND THAT SHE HAS SHIFTED OVER TO SOMEWHERE IN M OHALI. HOWEVER THE INSPECTOR/NOTICE SERVER INSISTED UPON TA KING THE NOTICE, WHICH I RECEIVED ON 04/02/2012. 5. THAT SINCE I HAD NO AUTHORITY AND COMPETENCE TO A PPEAR ON BEHALF OF SMT. PARMINDER KAUR BEDI AND THE CONTACT DETAILS OF SMT. PARMINDER KAUR BEDI WERE ALSO LOST, THEREFORE T HE NOTICE WAS LYING WITH ME AS I HAD NO ADDRESS OF SMT. PARMINDER KAUR BEDI. THEREFORE I DID NOT ATTEND TO THE DATE OF HEARING ME NTIONED IN THE NOTICE. 6. THAT AGAIN AFTER A WEEK I RECEIVED TELEPHONIC CAL L FROM THE OFFICE OF COMMISSIONER OF INCOME TAX, KOTA THAT I SH OULD ATTEND ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 11 THE HEARING OF MATTER OF SMT. PARMINDER KAUR BEDI. I INFORMED THE CONCERNED PERSON ON THE TELEPHONE ITSELF THAT L HAVE NO AUTHORITY AND COMPETENCE TO APPEAL ON BEHALF OF SMT . PARMINDER KAUR BEDI, SHE HAS LEFT KOTA, HER INCOME-TAX FILES HAVE BEEN HANDED OVER TO HER, SHE IS NOT IN TOUCH FOR PAST MO RE THAN 1 YEAR AND THAT THE CONTACT DETAILS OF SMT. PARMINDER KAUR BEDI WERE ALSO LOST, HENCE I WILL NOT APPEAR. 7. THAT AGAIN SOMEWHERE IN THE SECOND WEEK OF MARCH, 2012, THE INSPECTOR/NOTICE SERVER CAME FROM THE OFFICE OF THE COMMISSIONER OF INCOME TAX, KOTA TO MY OFFICE WITH AN ORDER PASSED U/S 263 OF THE INCOME TAX ACT DATED 07.03.201 2 OF SMT. PARMINDER KAUR BEDI TO WHICH I HAD REPLIED THAT SINC E THE FAMILY HAD SHIFTED TO MOHALI, I AM NOT AWARE OF HER LATEST ADDRESS. ALL PAPERS AFTER FURNISHING OF RETURN FOR THE ASSESSMEN T YEAR 2010- 11 WERE HANDED OVER TO THE ASSESSEE AND SINCE THEN T HEY ARE NOT IN TOUCH WITH ME WHICH IS ALSO AT LEAST 1 YEAR BACK, BUT THE INSPECTOR/NOTICE SERVER INSISTED UPON TAKING THE OR DER WHICH I RECEIVED ON 14.03.2012. SINCE THE WHEREABOUTS OF SMT . PARMINDER KAUR BEDI WERE NOT KNOWN, THEREFORE THE ORD ER WAS LYING WITH ME AS I HAD NO UPDATED ADDRESS OF SMT. PA RMINDER KAUR BEDI . 8. THAT IT IS SOMEWHERE IN OCTOBER, 2012 THAT SMT. P ARMINDER KAUR BEDI TALKED TO ME AND CONVEYED THAT SOME NOTIC ES HAVE BEEN RECEIVED AT HER MOHALI (PUNJAB) ADDRESS BEARIN G NOTICES U/S 142(1), 143(2) AND 143(3) AND ENQUIRED AS TO REASON S FOR THE SAME. THAT I WAS NOT AWARE SO I CONVEYED TO SEND THE S AME FOR ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 12 MY PERUSAL AND SIMULTANEOUSLY I RECOLLECTED AND CON VEYED TO HER THAT ONE ORDER U/S 263 DATED 07.03.2012 HAS BEEN SE NT TO ME AND APPROPRIATE ACTION NEEDS TO BE TAKEN. I CONVEYE D H HER THAT THE NOTICES APPEAR TO BE FALLOUT OF THE SAID ORDER. ACCORDINGLY I SENT THE ORIGINAL ORDER TO HER IN THE SECOND WEEK OF OCTOBER, 20L2 FOR TAKING APPROPRIATE ACTION. THEREAFTER SHE SENT B ACK THE ORDER TO ME REQUESTING ME TO PREFER AN APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. ACCORDINGLY I GOT THE APPEAL PREPARED ON HER BEHALF. 9. THAT SINCE I WAS NOT AWARE OF THE LATEST ADDRESS OF SMT. PARMINDER KAUR BEDI OF MOHALI (PUNJAB) THEREFORE TH E ORDER WAS LYING WITH ME FOR THE LAST ABOUT 7 MONTHS FOR WANT OF HER ADDRESS. IMMEDIATELY WHEN SHE CONVEYED HER ADDRESS I T WAS SENT TO HER. 3.1 THE LEARNED A.R. OF THE ASSESSEE ALSO FILED WRITT EN REPLY ON CONDONATION OF DELAY, WHICH IS REPRODUCED AS UNDER:- ASSESSEE HAD SHIFTED TO MOHALI (PUNJAB) IN OCTOBER 2010 AND SHE FILED HER RETURN OF INCOME FOR A.Y. 2010-11 ON 15.03.2011 DECLARING HER ADDRESS OF MOHALI (PUNJAB). SHE TOOK ALL THE INCOME-TAX FILES FROM HER ADVOCATE SHRI R.S. AGESWAR AFTER SHIFTING TO MOHALI (PUNJAB) AS NO INCOME-TAX PROCE EDINGS WERE PENDING. CIT DIRECTLY SERVED NOTICE U/S 263 ON ASSESSEES ER STWHILE A.R. AND ALSO SERVED THE ORDER U/S 263 ON HER ERSTW HILE A.R. ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 13 WHO ALSO REFUSED TO APPEAL BEFORE CIT AND OBJECTED TO SERVICING OF NOTICE ON HIM STATING THAT HE HAS NO R ECORD OF THE ASSESSEE AS ASSESSEE HAS TAKEN ALL HER FILES AND HE IS NOT COMPETENT TO APPEAL AS HE HOLDS NO BRIEF ON ASSESSE ES BEHALF. ORDERS AND NOTICES ARE KEPT WITH THE ERSTWHILE A.R. O F THE ASSESSEE. SUBSEQUENT TO ORDER PASSED BY THE CIT U/S 263, WHEN THE A.O. ISSUED NOTICES U/S 148, 142(1), 143(2) DATED 0 1.10.2012 OF THE INCOME-TAX ACT AT ASSESSEES MOHALI ADDRESS, WHICH SHE RECEIVED ON 09.10.2012, SHE AGAIN CONTACTED HER ERS TWHILE A.R., WHO IMMEDIATELY SENT THE NOTICES AND ORDER LYI NG WITH HIM WHICH SHE RECEIVED ON 12.10.2012 AND WITHIN 2 MON THS THEREOF, SHE HAS FILED THIS APPEAL ALONGWITH CONDONA TION APPLICATION. DELAY IF ANY WAS NOT AT THE END OF THE ASSESSEE, NOR WAS IT DELIBERATE. COURTS HAVE CONSISTENTLY HELD THAT WHILE GRANTING CONDONATION, A LIBERAL APPROACH SHOULD BE ADOPTED R ATHER THAN A PEDANTIC OR HYPER TECHNICAL APPROACH, WHICH WOULD D EFEAT THE LEGITIMATE CLAIMS OF TAX PAYERS. RELIANCE IS PLACED UPON: A. BHARTIYA ENGINEERING CORPORATION PRIVATE LIMITED VS. R.G. DESHPANDE 130 ITR 442 (BOM.) B. B.M. MALANI VS. CIT 306 ITR 196 (SC). C. R. SESHAMMAL VS. ITO & ANR 237 ITR 185 (MAD). D. SITALDAS K. MOTWANI VS. DGIT & ANR. 323 ITR 223 (BOM) ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 14 E. BOMBAY MERCANTILE COOPERATIVE BANK LIMITED VS. CBDT & ORS. 332 ITR 87 (BOM). 4. AT THE OUTSET, THE LEARNED SR.D.R. ARGUED THAT I N THIS CASE, NOTICE U/S 148 OF THE ACT WAS ISSUED BY THE ASSESSING OFFIC ER AND DROPPED THE ASSESSMENT PROCEEDINGS ON ORDERSHEET WITHOUT GIVING DETAIL FINDINGS. IT IS FACT THAT NO INQUIRY/INVESTIGATION HAS BEEN COND UCTED BY THE ASSESSING OFFICER TO DECIDE THE CASE. THE LEARNED CI T, KOTA HAS GIVEN DETAILED FINDINGS AND DIRECTED THE ASSESSING OFFICE R TO REISSUE NOTICE U/S 148 TO THE ASSESSEE VIDE ORDER DATED 07/03/2012. THE APPELLANT HAD FILED APPEAL IN THIS CASE ON 10/12/2012, WHICH IS MO RE THAN 215 DAYS. THE ASSESSEE FILED CONDONATION APPLICATION ALONGWITH AFFIDAVIT OF SHRI R.S. AGESHWAR, ERSTWHILE ADVOCATE OF THE ASSESSEE DAT ED 04/12/2014. THE ASSESSEE LEFT KOTA IN OCTOBER, 2010 AS CLAIMED B Y HER AND SHIFTED TO MOHALI (PUNJAB) BUT THERE IS NO EVIDENCE ON RECO RD THAT SHE HAS SHIFTED MOHALI (PUNJAB). FURTHER, EVEN THESE FACTS CONSIDERED CORRECT THEN IT IS A DUTY OF ASSESSEE TO KEEP IN CONTACT WIT H A.R. AND ALSO A.R. SHOULD HAVE INFORMED THE ASSESSEE REGARDING INCOME TAX PROCEEDINGS. SHE FURTHER CLAIMED THAT SHE APPLIED FOR CHANGE OF ADDRESS FOR WHICH NO DOCUMENTARY EVIDENCE HAS BEEN SUBMITTED AND ALSO HA S NOT COME OUT FROM THE OFFICE RECORD THAT SHE APPLIED FOR CHANGE OF ADDRESS. SHE ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 15 FURTHER CLAIMED THAT RETURN FOR A.Y. 2010-11 WAS FIL ED ON 15/03/2011 AND ADDRESS ON WHICH WAS SHOWN AT MOHALI IN RANGE-1(2) , KOTA, WHICH PROVED THAT THE ASSESSEE WAS IN CONTACT WITH A.R. OF THE ASSESSEE. THE LEARNED ERSTWHILE A.R. SHRI R.S. AGESHWAR WAS ALSO HE LPING THE ASSESSEE TO FILE THE RETURN IN KOTA UP TO 15/3/2011, THEREFO RE, AFFIDAVIT FILED BY SHRI R.S. AGESHWAR, ERSTWHILE ADVOCATE OF THE ASSESSE E IS NOT ACCEPTABLE. WHEN SHE GOT THE NOTICE FROM THE ASSESS ING OFFICER U/S 143(2) OF THE ACT IN OCTOBER, 2012, SHE CONTACTED T O SHRI R.S. AGESHWAR, ERSTWHILE ADVOCATE OF THE ASSESSEE. THE A. R. IS TO INFORM THE ASSESSEE WHEN HE SERVED THE ORDER U/S 163 OF THE ACT ON HIM. THE REASON BEHIND NOT INFORMING THE ASSESSEE IS BEST KN OWN TO THE ADVOCATE AS WELL AS PARTY. THEREFORE, THE DELAY IN FI LING THE APPEAL MAY NOT BE CONDONED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT THAT THERE WAS A DELAY IN FILING OF APPEAL ABOUT MORE THA N 215 DAYS. THE A.R. OF THE ASSESSEE WAS ALSO AWARE OF THIS FACT THAT THE PROCEEDING U/S 263 OF THE ACT HAS BEEN INITIATED AGAINST THE ASSES SEE. THE CIRCUMSTANCES EXPLAINED BY SHRI R.S. AGESHWAR, ERSTW HILE ADVOCATE OF THE ASSESSEE HAS NOT BEEN SUPPORTED WITH ANY EVIDENC E. THERE IS NO ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 16 EVIDENCE ON RECORD THAT THE ASSESSEE HAS LEFT KOTA IN OCTOBER, 2010 EVEN SHE HAS FILED RETURN FOR A.Y. 2010-11 ON 15/03 /2011 FROM MOHALI IN KOTA OFFICE. THEREFORE, THIS FACT IS NOT ACCEPTA BLE WHEN SHE GOT THE NOTICE FROM THE ASSESSING OFFICER IN THE MONTH OF O CTOBER, 2012 (NO ASSESSMENT YEAR HAS BEEN GIVEN). SHE IMMEDIATELY CO NTACTED TO SHRI R.S. AGESHWAR, ERSTWHILE ADVOCATE OF THE ASSESSEE. THE FACTS MENTIONED BY SHRI R.S. AGESHWAR, ERSTWHILE ADVOCATE O F THE ASSESSEE IN HIS AFFIDAVIT DATED 04/12/2014 ARE CONTRADICTORY IN FACTUAL AS WELL AS IN SEQUENCES OF EVENTS. WHEN 263 OF THE ACT ORDER HAS BEEN SERVED ON THE ADVOCATE, IT IS HIS DUTY TO INFORM THE ASSESSEE IMMEDIATELY BUT HE IN CONNIVANCE WITH THE ASSESSEE HAD NOT FILED APPEAL IN TIME, WHICH WAS PRIMARY OBLIGATION ON PART OF BOTH THEM. THE LEARNE D THE THEN A.R. ALSO ADMITTED IN HIS AFFIDAVIT THAT RETURN FOR A.Y. 2010 -11 WAS SUBMITTED ON 15/3/2011. AT THE TIME OF FURNISHING OF HER RETURN FOR A.Y. 2010-11, HE CAME TO KNOW THAT THEY HAVE SOLD THE HOUSE AT KOTA. WHEN RETURN FOR A.Y. 2010-11 WAS FILED ON 15/3/2011 ON WHAT BASIS HE PRESUMED THAT NO MATTER WAS PENDING AFTER FURNISHING OF THE RETURN , WHICH WAS BELATED RETURN. IT IS AUTOMATIC ON THE PART OF THE ASSESSIN G OFFICER TO ISSUE NOTICE IN THIS CASE TO SCRUTINIZE THE CASE BEING RE TURN FILED LATE. EVEN SCRUTINY NOTICE U/S 143(2) FOR A.Y. 2010-11 COULD B E ISSUED BY THE ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 17 ASSESSING OFFICER UP TO SEPTEMBER, 2011 AS PER LAW. THE LEARNED CIT ISSUED IN THIS CASE SHOW NOTICE ON 03/2/2012 FOR A.Y . 2008-09. THUS, THE DEPOSITIONS IN AFFIDAVIT REMAIN VAGUE, UNSUBSTA NTIATED AND DO NOT AMOUNT TO EXPLAINING THE SUFFICIENT CAUSE. THE AFFID AVIT AND CAVALIER CONDUCT OF SHRI R.S. AGESHWAR, THE THEN ADVOCATE OF THE ASSESSEE RAISES SERIOUS QUESTIONS ON HIS PROFESSIONAL COMPET ENCE AND WORK ETHICS IN GIVING SUCH AN AFFIDAVIT WHICH HIDES MORE THAN I T EXPLAINS. THE BURDEN IS ON THE ASSESSEE TO REASONABLY EXPLAIN DAY TO DAY DELAY AND ESTABLISH THAT THERE EXISTED REASONABLE AND SUFFICI ENT CAUSE IN DELAYING THE FILING OF APPEALS FOR ABOUT MORE THAN 215 DAYS. IF THE PROPER DATES OR OCCASIONS ARE NOT MENTIONED WITH PROPER FACTS THE N THE DELAY CANNOT BE CONDONED. IN THIS BEHALF, WE RELY ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF MADHU DADHA VS. AC IT (2009) 317 ITR 458 (MAD). THE HONBLE HIGH COURT HAS HELD AS UN DER:- HELD, DISMISSING THE APPEAL, THAT IT WAS CLEAR THA T THE ASSESSEE HAD NOT EXPLAINED THE CAUSE OF DELAY IN FILING THE APPEAL, ESPECIALLY WHEN THE AUTHORIZED REPRESENTATIVE WHO WAS GIVEN CHARGE TO FILE THE APPEAL HAD DIED EXACTLY ONE YEAR AFTER THE LAST DATE FOR FILING OF THE APPEAL. EVEN AFTER THE DEATH OF THE AUTHORIZED REPRESENTATIVE THE ASSESSEE HAD TAKEN MO RE THAN SIX MONTHS TO FILE THE APPEAL. THE ASSESSEE HAD NEITHER GIVEN ANY PARTICULAR OR DETAILS IN THE AFFIDAVIT AS TO THE DA TE ON WHICH THE ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 18 PAPERS WERE HANDED OVER TO THE COUNSEL FOR PREPARING THE APPEAL AND ON WHAT OCCASION THE ASSESSEE ENQUIRED ABOUT THE PROGRESS IN PREPARING THE APPEAL AND FILING IT. THE ASSESSEE HAD NOT TAKEN A PROPER PLEA TO SHOW SUFFICIENT CAUSE GIVING EVIDEN CE AND PROOF BEYOND REASONABLE DOUBT FOR THE DELAY. THERE WAS NO N EED TO INTERFERE WITH THE ORDER OF THE TRIBUNAL. IN THIS JUDGMENT, THE HON'BLE SUPREME COURT CITATIO N I.E. COLLECTOR, LAND ACQUISITION VS. MST. KATIJI (SUPRA) HAS ALSO B EEN CONSIDERED. WE FIND MERIT IN THE CONTENTIONS OF LD. DR THAT LAW HEL PS DILIGENT AND NOT THE INDOLENT AS WELL AS THE AXIOMATIC DELAY DEFEATS EQUITY. IN OUR CONSIDERED VIEW THAT THE CONDONATION PETITI ON FILED BY THE ASSESSEE AND MATERIAL AVAILABLE ON THE RECORD, FAIL TO INVOKE ANY CONFIDENCE, FAIL TO EXPLAIN REASONABLE AND SUFFICIE NT CAUSE FOR CONDONATION OF LONG DELAY OF MORE THAN 215 DAYS IN FILING THIS APPEAL. THE ASSESSEE HAS TO COME CLEAN WITH ALL THE RELEVANT FACTS, WHICH HAPPENED IN THE PERIOD OF MORE THAN 215 DAYS. THE AS SESSEE HAS TO EXPLAIN ALL THE EVENTS AND BE SPECIFIC IN THE DATES . THE DEPOSITIONS MADE IN THE THEN ADVOCATES AFFIDAVIT REMAIN UNCORR OBORATED. THUS, THE VAGUE AFFIDAVIT GIVEN BY SHRI R.S. AGESHWAR, THE THE N ADVOCATE OF THE ASSESSEE REMAINS UNCORROBORATED AND UNRELIABLE. IN THE ENTIRETY OF ITA 908/JP/2012_ SMT. PARMINDER KAUR BEDI VS. CIT 19 FACTS AND CIRCUMSTANCES OF THE CASE, WE DECLINE TO C ONDONE THE DELAY OF MORE THAN 215 DAYS IN FILING THIS APPEAL. AS WE DISMISS THIS APPEAL ON CONDONATION OF DELAY APPLICATION, WE HAVE NOT GIVEN ANY FINDING ON MERIT OF THE CASE. 11. IN THE RESULT, THE ASSESSEE APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 20 TH MARCH, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. PARMINDER KAUR BEDI, MOHALI (PUNJAB). 2. IZR;FKHZ @ THE RESPONDENT- COMMISSIONER OF INCOME TAX, KOTA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 908/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR