Appeal details
Counselvise Citation
[2012] 119 COUNSELVISE.COM (IT) 8040 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-11-2012
Appeal Filed By
Department
Bench Allotted
A
Assessment Year
2008-2009
Appeal Filed On
15-06-2012
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ () )) ) , , , , . .. .!' !'!' !'. .. . , , , , #$ ] ]] ] [BEFORE SMT.DIVA SINGH, JM & SRI C. D. RAO, AM ] & / I.T.A NO. 936/KOL/2012 '( )*/ ASSESSMENT YEAR : 2008-09 A.C.I.T., CIRCLE-1, -VS.- SRI SUBHASH SU R JALPAIGURI JA LPAIGURI (PAN:AIWPS 9830 L) [ ,- /APPELLANT ] [ ./,-/ RESPONDENT ] ,- / FOR THE APPELLANT : SHRI K.N.JANA, JCIT(SR. DR) ./,- / FOR THE RESPONDENT : SHRI S.L.KOCHAR, ADVO CATE. 0'1 2 '$ /DATE OF HEARING : 01.11.2012. 3) 2 '$ /DATE OF PRONOUNCEMENT : 01.11.2012. #4 /ORDER , , , , PER DIVA SINGH, J.M. THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORD ER DATED 30.03.2012 OF CIT- (A)-JALPAIGURI PERTAINING TO ASSESSMENT YEAR 2008-0 9 ON THE FOLLOWING GROUNDS :- A/ THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. C.I.T (A), JALPAIGURI HAS ERRED IN LAW AND FACT, IN ACCEPTING THE ASSESSEES PRAYER FOR CONDONATION OF THE DELAY IN FILING APPEAL WHILE IGNORING THE NEGLIGENCE ON THE PART OF THE ASSESSEE, EXPLICITLY DETAILED WITH REASONS IN THE REMAND REPORT OF THE ASSESSING OFFICER. B/THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER A ND/OR MODIFY THE GROUNDS TAKEN THEREIN. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASS ESSEE RETURNED AN INCOME OF RS.15,66,820/- BY WAY OF FILING OF RETURN ON 26.08. 2008 WHEREIN CERTAIN ADDITIONS WERE MADE BY THE ORDER DATED 27.12.2010 PASSED BY A.O. U /S 143(3) OF THE IT ACT. AGAINST THE ADDITIONS THE ASSESSEE CAME IN APPEAL BEFORE TH E CIT(A). THE CIT(A) REQUIRED THE ITA NO.936/KOL/2012 2 ASSESSEE TO EXPLAIN THE DELAY OF MORE THAN TWO MONT HS AS THE APPEAL WAS INSTITUTED BEFORE CIT(A) ON 07.04.2011. THE RELEVANT FACTS AS CULLED OUT IN THE IMPUGNED ORDER AT PAGE 1 READ AS UNDER :- CONDONATION OF DELAY : IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED U/S 1 43(3) ON 27.12.2010. SAME WAS SERVED ON THE ASSESSEE IN TIME. HOWEVER, THE ASSESSEE FILE D THE APPEAL ON 07.04.2011. THUS, THERE WAS A DELAY OF MORE THAN TWO MONTHS IN FILING THE A PPEAL. THE ASSESSEE FILED ONE CONDONATION PRAYER STATING THAT FROM NOVEMBER, 2010 TO MIDDLE OF JANUARY, 2011, HE WAS IN VELLORE FOR TREATMENT OF HIS DEPENDENT UNMARRIED SISTER, WHO WAS SUFFERING FROM CANCER. THEREFORE, HE WAS NOT AWARE OF THE COMPLETI ON OF THE ASSESSMENT AND SERVICE OF THE ASSESSMENT ORDER. HE CAME TO KNOW ABOUT THE SAM E FROM HIS BANKERS THAT THE DEMAND RAISED BY THE AO WAS COLLECTED FROM HIS BANK A/C. O NCE HE CAME TO KNOW THE SAME, HE COLLECTED PHOTOCOPY OF THE ASSESSMENT ORDER ON 11.0 3.2011, BUT FILED THE APPEAL ON 07.04.2011. AS HE WAS MENTALLY UPSET DUE TO THE ILL NESS OF HIS SISTER, HE COULD NOT FILE THE APPEAL IMMEDIATELY AFTER RECEIVING THE APPELLATE OR DER. 2.1. CONSIDERING THE ABOVE MENTIONED SUBMISSION THE CIT(A) REMANDED THE ISSUE TO THE AO FOR VERIFICATION. A PERUSAL OF THE AOS OBSE RVATIONS AS SET OUT IN THE IMPUGNED ORDER SHOW THAT THE ASSESSMENT ORDER COULD NOT BE S ERVED UPON ASSESSEE BY THE POST OFFICE AND THE SAME WAS SERVED BY WAY OF AFFIXTURE. THE RELEVANT FACTS FOR READY REFERENCE ARE REPRODUCED HEREUNDER :- FOR VERIFICATION OF THE FACT, THE MATTER WAS REFER RED TO THE AO. THE AO FILED ONE DETAILED REPORT ON THE CONDONATION PRAYER STATING THAT THE A SSESSMENT ORDER WAS SERVED INITIALLY BY POST, BUT THE SAME WAS RETURNED BY THE POST OFFICE WITH REMARKS LEFT AND THEN COPY OF THE SAME WAS SERVED BY AFFIXATION ON 31.12.2010 AT THE GIVEN ADDRESS OF THE ASSESSEE. THE AO ALSO SUBMITTED THAT EVEN AFTER COLLECTING THE AS SESSMENT ORDER FROM THE OFFICE, THE ASSESSEE DID NOT FILE THE APPEAL IMMEDIATELY AFTER COLLECTING THE SAID ORDER. THEREFORE, THE REASON GIVEN BY THE ASSESSEE FOR CONDONATION OF DEL AY IS NOT SATISFACTORY AND SHOULD BE REJECTED. 2.2. ACCORDINGLY THE CIT(A) CAME TO THE FOLLOWING C ONCLUSION :- I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND ALSO THE REPORT OF THE LD AO. THE LD AO DID NOT DISPUTED THAT THE ASSESSEE WA S NOT IN JALPAIGURI WHILE THE ASSESSMENT ORDER WAS PASSED. THE ORDER ISSUED BY PO ST COULD NOT BE SERVED BY THE POSTAL AUTHORITY BECAUSE AT THAT TIME NO ONE WAS AVAILABLE AT THE RESIDENCE. THUS, THE SAME HAD TO BE SERVED BY AFFIXATION. THE DOCUMENT ENCLOSED BY T HE ASSESSEE ALSO SUPPORT THAT THE SISTER OF THE ASSESSEE WAS SUFFERING FROM CANCER AND SHE W AS BEING TREATED AT VELLORE. THE ASSESSEE WAS ALSO A SENIOR CITIZEN. THEREFORE, THE EXPLANATION GIVEN FOR THE DELAY IN FILING THE APPEAL THAT HE WAS MENTALLY UPSET AND TRAVELLED FREQUENTLY TO VELLORE APPEARS TO BE REASONABLE. THEREFORE, THE REASON GIVEN FOR THE DEL AY IN FILING THE APPEAL CAN BE ACCEPTED. ON THIS GROUND, THE DELAY IN FILING THE APPEAL IS C ONDONED AND THE APPEAL IS ADMITTED. ITA NO.936/KOL/2012 3 2.3. AGGRIEVED BY THIS, THE REVENUE IS IN APPEAL BE FORE THE TRIBUNAL. 3. THE LD. DR RELYING UPON THE FACTS CONSIDERED BY THE CIT(A) SUBMITTED THAT THE CIT(A) WAS NOT CORRECT IN CONDONING THE DELAY AND I N FACT THE APPEAL OF THE ASSESSEE BEFORE CIT(A) SHOULD HAVE BEEN DISMISSED ON LIMITAT ION. IN SUPPORT OF THE SAID SUBMISSIONS, HE EMPHASIZED THE FACT THAT THE SERVIC E WAS MADE BY AFFIXTURE. ACCORDINGLY, IT WAS HIS PRAYER THAT THE DEPARTMENTA L APPEAL ON THE LIMITATION GROUND BE ALLOWED AND THE IMPUGNED ORDER BE SET ASIDE. 4. THE LD. AR, ON THE OTHER HAND, RELIED ON THE IMP UGNED ORDER AND THE FACTS TAKEN INTO CONSIDERATION BY THE CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME WE F IND OURSELVES UNABLE TO ACCEPT THE ARGUMENT OF THE ASSESSEE. . THE RECORD SHOWS THAT T HE ASSESSMENT ORDER IS DATED 27.12.2010 AND AS PER THE REPORT OF THE AO REPRODUC ED IN THE IMPUGNED ORDER WHICH REMAINS UNREBUTTED ON RECORD THE ASSESSMENT ORDER W AS SERVED BY WAY OF AFFIXTURE ON 31.12.2010. AS SUCH THE ABSENCE OF THE ASSESSEE AT JALPAIGURI I.E. HIS PLACE OF RESIDENCE STANDS SUPPORTED BY THE AOS VERIFICATION ITSELF. T HE ASSESSEE HAS EXPLAINED THAT HIS ABSENCE WAS DUE TO THE FACT THAT HE WAS FREQUENTLY TRAVELING TO VELLORE FOR THE TREATMENT OF HIS DEPENDENT UNMARRIED SISTER WHO IS SUFFERING FROM CANCER. THE SAID IN FACT IS NOT DISPUTED BY THE REVENUE. THE FACT THAT THE ORDER CO ULD NOT BE SERVED UPON ASSESSEE BY THE POSTAL AUTHORITIES IS AN UNDISPUTED FACT ON REC ORD WHICH PROVED THAT THE ASSESSEE AT THE RELEVANT TIME WAS NOT AVAILABLE AT HIS RESIDENC E. THE FACT THAT ASSESSEE WAS A SENIOR CITIZEN IS AN UNDISPUTED FACT ON RECORD. UNDER THES E CIRCUMSTANCES, THE CONCLUSION DRAWN BY THE CIT(A) BY WAY OF ACCEPTING THE ARGUMEN TS THAT THE ASSESSEE WAS MENTALLY UPSET ON ACCOUNT OF FREQUENT TRAVEL CANNOT BE FAULT ED WITH ON ACCOUNT OF WHICH FACT AND REASONING THE DELAY HAS OCCURRED WHICH HAS BEEN CON DONED. NO ARGUMENTS OR REBUTTAL ON ITA NO.936/KOL/2012 4 FACT HAS BEEN BROUGHT ON RECORD TO SHOW HOW THE REA SONING IS FAULTY. THE FACTS REMAIN UNDISPUTED. ACCORDINGLY, BEING SATISFIED BY THE REA SONING AND THE FINDING THE GROUND RAISED BY THE DEPARTMENT IS DISMISSED. 6. IN THE RESULT THE APPEAL OF REVENUE IS DISMISSED AS PER PRONOUNCEMENT IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES ON THE DA TE OF HEARING ITSELF I.E. 01.11.2012. #4 $0# 5 0' 6 7 '$ ORDER PRONOU NCED IN THE OPEN COURT ON 01.11.2012. SD/- SD/- [ .!'., , , , #$ ] [ , ] [ C. D. RAO ] [ DIVA SINGH ] ACCOUNTANT MEMBER JUDICIAL MEMBER ('$) DATED : 01.11.2012. [RG '89 : /.PS] #4 2 .; <#;)/ COPY OF THE ORDER FORWARDED TO: 1. SRI SUBHASH SUR, KADAMTALA, NEAR DIPTI CINEMA HALL, JALPAIGURI. 2 A.C.I.T., CIRCLE-1, JALPAIGURI 3. CIT KOLKATA 4. CIT (A)-JALPAIGURI. 5. CIT DR, KOLKATA BENCHES, KOLKATA [/; ./ TRUE COPY] #4'0/ BY ORDER, 9 /ASSTT REGISTRAR ITA NO.936/KOL/2012 5
