M/s Him Polymers, Mandi V. ITO, Mandi

MA 24/CHANDI/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5525 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: SHALABH SINGH
• Keywords: Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER M.A. NO.24/CHD/2016 (IN ITA NO. 268/CHD/2014) ASSESSMENT YEAR: 2009-10 M/A HIM POLYMERS, VS. THE ITO, SAULI KHD, MANDI MANDI (H.P) PAN NO. AADFH8175L (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SHALABH SINGH RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 28.04.2017 DATE OF PRONOUNCEMENT : 19.05.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISC. APPLICATION HAS BEEN MOVED BY THE ASSESSEE / APPLICANT PLEADING THAT A MISTAKE APPARENT ON RECOR D HAS OCCURRED IN THE ORDER DATED 18.11.2015 WHILE DISMISSING THE APPLICA TION OF THE ASSESSEE FOR CONDONATION OF DELAY OF 396 DAYS IN FILING THE APPE AL AND THEREBY DISMISSING THE APPEAL OF THE ASSESSEE BEARING ITA N O. 268/CHD/2014 FOR ASSESSMENT YEAR 2009-10. 2 2. THE APPLICANT HAS PLEADED THAT CERTAIN RELEVANT FACTUAL AND LEGAL ASPECTS HAVE ESCAPED THE ATTENTION OF THE TRIBUNAL WHILE REJECTING THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELA Y AND THEREBY A MISTAKE HAS CREPT IN THE ORDER DATED 18.11.2015 OF THIS TR IBUNAL WHILE DISMISSING THE APPEAL OF THE ASSESSEE, BEING TIME BARRED. THE LD. COUNSEL FOR THE ASSESSEE INVITING OUR ATTENTION TO FORM NO. 35, WHI CH IS A PRESCRIBED FORM FOR FILING THE APPEAL TO THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREIN REFERRED TO CIT(A) ], HAS STATED THAT SERIAL NO. 14 OF THE SAID FORM IS MEANT FOR PROVIDING THE ADDRESS TO WHICH NOTICE MA Y BE SENT TO THE APPELLANT. THAT IN THE SAID COLUMN, THE ADDRESS F OR SENDING THE NOTICE WAS MENTIONED AS C/O RAJEEV SOOD & CO. CHARTERED ACCOU NTANTS, 38/5, IST FLOOR HOSPITAL ROAD MANDI HP 175001. HE HAS FURTHE R INVITED OUR ATTENTION THE TO THE IMPUGNED ORDER DATED 18.11.201 5, IN SPECIFIC PARA 5 OF THE SAID ORDER, WHEREIN THE FACTUAL ASPECTS RELATIN G TO THE MATTER HAVE BEEN NOTED DOWN. THE SAID PARA 5 OF THE TRIBUNAL, FOR TH E SAKE OF CONVENIENCE, IS REPRODUCED AS UNDER:- 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES. THE ASSESSEE CLAIMED THAT ITS FACTORY WAS CLOSED IN FEBRUARY, 2012 AND AS SUCH, ASSESSEE MOVED OUT OF MANDI. NO EVIDENCE TO THAT EFFECT HAS BEEN FILED ON RECORD. FURTHER, LD. COUNSEL FOR THE ASSESSEE ADMITTED DURING THE COURSE OF ARGUMENTS THAT ASSESSEE NEVER INTIMATED THE REVENUE DEPARTMENT OF THEIR CLOSURE OF THE FACTORY AND CHANGE OF ADDRESS AT ANY POINT OF TIME. IT IS ALSO ADMITTED FACT THAT IN OCTOBER,2013, ASSESSEE HAS RECEIVED A LETTER FROM DISTRICT INDUSTRY CENTRE, MANDI AT THE ADDRESS OF THE FACTORY PREMISES, COPY OF WHICH IS ALSO PLACED ON RECORD. THE LD. DR PRODUCED 3 THE POSTAL RECEIPT TO SHOW THAT THE IMPUGNED ORDER WAS SENT THROUGH REGISTERED POST AT THE CORRECT ADDRESS OF THE ASSESSEE ON 04.01.2013 AND THE SAME HAS BEEN SERVED UPON THE ASSESSEE. THE ASSESSEE HAS NOT DENIED THE ISSUE OF IMPUGNED ORDER TO THE ASSESSEE AT THE CORRECT ADDRESS THROUGH REGISTERED POST. THE ASSESSEE HAS ALSO NOT DENIED RECEIPT OF T HE IMPUGNED ORDER THROUGH REGISTERED POST AT THE CORRECT ADDRESS OF THE ASSESSEE. THE ASSESSEE HAS THUS, FILED A VAGUE APPLICATION FOR CONDONATION OF DELAY WITHOUT EXPLAINING ANY SUFFICIENT REASON FOR CONDONATION OF DELAY. 3. THE LD. COUNSEL HAS FURTHER INVITED OUR ATTENTI ON TO THE POSTAL RECEIPT PRODUCED BY THE DEPARTMENT WHEREIN THE ADDR ESS AT WHICH THE COPY OF THE FINAL ORDER OF THE CIT(A) WAS SENT AND CLAIM ED TO BE ALLEGEDLY SERVED UPON THE ASSESSEE. THE SAID ADDRESS IS MENTI ONED AS UNDER:- M/S HIM POLYMERS, MANDI PIN 175001 THE LD. COUNSEL HAS STATED THAT THE ADDRESS SO MENT IONED AT WHICH THE FINAL ORDER / NOTICE BY THE CIT(A) WAS SENT TO THE ASSESS EE WAS OF THE FACTORY PREMISES OF THE ASSESSEE. HE WHILE RELYING UPON THE VARIOUS LETTERS OF DIFFERENT DATES WRITTEN TO DIFFERENT AUTHORITIES SU CH AS H.P. POLLUTION CONTROL BOARD, CENTRAL EXCISE AND SERVICE TAX DEPAR TMENT, G.M DISTRICT INDUSTRIES CENTRE, MANDI, TRADE TAX DEPARTMENT DIST RICT MANDI, DISTRICT SUPPLY OFFICER, MANDI ETC. HAS CONTENDED THAT THE I NTIMATION REGARDING THE STOPPAGE OF PRODUCTION AND CLOSURE OF THE FACTORY O F THE ASSESSEE WAS DULY SENT TO THESE AND AUTHORITIES, THEREFORE, THESE LE TTERS WERE SUFFICIENT 4 EVIDENCE TO SHOW THAT THE FACTORY PREMISES OF THE A SSESSEE HAD ALREADY CLOSED DOWN AT THE TIME OF THE ALLEGED SERVICES OF THE ORDER OF THE CIT(A) AT THE FACTORY ADDRESS OF THE ASSESSEE. THE LD. COU NSEL HAS PARTICULARLY RELIED UPON THE LETTER DATED 5.10.2013 OF THE DISTR ICT INDUSTRIES CENTRE, MANDI (H.P.) VIDE WHICHTHE SAID DEPARTMENT HAS RECA LLED THE CAPITAL INVESTMENT SUBSIDY AND TRANSPORT SUBSIDY PAID TO TH E ASSESSEE BECAUSE OF THE CLOSURE / NON RUNNING OF THE UNIT. THE LD. COUN SEL, THEREFORE, HAS STRESSED THAT THE UNIT WAS CLOSED IN THE YEAR 2011 ITSELF AND, THEREFORE, THE ORDER DATED 12.12.2012 OF THE COMMISSIONER OF INCOM E TAX (APPEALS) DISMISSING THE APPEAL OF THE ASSESSEE WAS NEVER REC EIVED BY THE ASSESSEE. THE MAIN CONTENTION OF THE LD. COUNSEL IS THAT WHEN A SPECIFIC COLUMN HAS BEEN PROVIDED IN THE FORM AT WHICH THE NOTICE RELAT ING TO THE APPEAL ARE TO BE SERVED UPON THE ASSESSEE AND WHEN A PARTICULAR A DDRESS HAS BEEN MENTIONED BY THE ASSESSEE IN THE SAID COLUMN, THEN THE INCOME TAX AUTHORITIES WERE SUPPOSED TO SERVE / SEND THE RELEV ANT NOTICES RELATING TO THE APPEAL BEFORE THE CIT(A) INCLUDING THE FINAL OR DER PASSED IN THE APPEAL AT THAT PARTICULAR ADDRESS. HE, THEREFORE, HAS CON TENDED THAT A MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL WHILE OBSERVI NG, THAT THE ASSESSEE HAS NOT DENIED THE ISSUE OF IMPUGNED ORDER TO THE A SSESSEE AT THE CORRECT ADDRESS THROUGH REGISTERED POST. THE LD. COUNSEL H AS STRESSED THAT THE CORRECT ADDRESS AND AT WHICH THE NOTICE WAS REQUIRE D TO BE SENT WAS THE ADDRESS AS MENTIONED AT S.N.14 OF FORM NO.35 (SUPRA ). 4. THE LD. DR ON THE OTHER HAND, HAS PLEADED THAT T HE TRIBUNAL IN ITS ORDER DATED 18.11.2015 HAS CONSIDERED AND ADJUDICAT ED UPON THE APPLICATION FOR CONDONATION OF DELAY AND THAT NO SU CH PLEADING REGARDING 5 ADDRESS MENTIONED AT S.N. 14 OF THE FORM NO. 35 WAS TAKEN. THAT THE PLEADING MADE IN PRESENT APPLICATION ARE CONTRARY T O THAT WERE MADE IN THE APPLICATION FOR CONDONATION OF DELAY. THE TRIBUNAL AFTER CONSIDERING THE APPLICATION AS WELL AS AFFIDAVIT OF THE PARTNER OF THE ASSESSEE FIRM HAS OBSERVED THAT THE ASSESSEE HAD FAILED TO PROVE THAT THE NOTICE WAS NOT SERVED UPON THE ASSESSEE. HE HAS FURTHER CONTENDED THAT THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THE FINAL ORDER OF THE CIT(A) WAS SERVED UPON THE ASSESSEE AT CORRECT ADDRESS OF THE ASSESSE E. HE, THEREFORE, HAS STRESSED THAT THE PRESENT MISC. APPLICATION IS MISC ONCEIVED AND NOT MAINTAINABLE 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND HAV E ALSO GONE THROUGH THE RECORD. THOUGH AT INITIAL STAGE, IT SEEMED TO US THAT THE ASSESSEE IN THE GRAB OF PRESENT MISC. APPLICATION, HAS BEEN TRYING TO RE-AGITATE THE SAME POINT OF CONDONATION OF DELAY; HOWEVER, ON A CAREFU L AND PATIENT HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS BEEN ABLE TO CONVINCE US THAT IT IS NOT MERELY THE QUESTION OF RE-AGITATING THE SAME POINT BUT THERE HAS BEEN SUFFICIENT GROUND FOR THE ASSESSEE TO POINT OUT THA T CERTAIN FACTUAL ASPECTS OF THE CASE HAVE BEEN MISSED BY THE TRIBUNAL WHILE ADJUDICATING THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELA Y IN FILLING THE APPEAL. WE HAVE ALSO GONE THROUGH THE ORIGINAL APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY. IN PARA 2 OF THE SAID APPLICA TION IT HAS BEEN SPECIFICALLY PLEADED BY THE ASSESSEE THAT FACTORY O F THE ASSESSEE AT MANDI (H.P.) WAS CLOSED DOWN AND THAT THE PARTNERS OF THE ASSESSEE FIRM HAVE MOVED OUT OF MANDI (H.P.). IN PARA 3 OF THE SAID AP PLICATION IT HAS BEEN PLEADED THAT EVEN THE CONCERNED CHARTERED ACCOUNTAN TS OF THE ASSESSEE 6 FIRM NAMELY SHRI ARVIND SAKYAN OF M/S SOOD AND ASSO CIATES, CAS HAD NEVER INFORMED THE ASSESSEE ABOUT THE FATE OF THE A PPEAL AND FURTHER THAT EVEN THEY WERE NOT REACHABLE ON PHONE AND COULD NOT BE CONTACTED. IT WAS ONLY WHEN THE ASSESSEE HAD RECEIVED A NOTICE FOR RE COVERY OF TAX DEMAND AND ENQUIRED THE MATTER FROM THE OFFICE OF THE CIT (A) THEN THE ASSESSEE CAME TO KNOW ABOUT THE PASSING OF THE FINAL ORDER. THE ASSESSEE IMMEDIATELY APPLIED FOR AND RECEIVED THE CERTIFIED COPY OF THE ORDER AND FILED THE APPEAL BEFORE THE TRIBUNAL. THE SAID APP LICATION OF THE ASSESSEE HAS BEEN SUPPORTED / CORROBORATED WITH THE DULY SWO RN AFFIDAVIT OF SHRI N.K. AGARWAL, PARTNER OF THE ASSESSEE FIRM. WE HAVE ALSO GONE THROUGH FORM NO. 35, WHICH IS MEA NT FOR FILING OF APPEAL FOR THE CIT(A), AND FIND THAT THE AVERMENTS OF THE LD. COUNSEL ABOUT THE ADDRESS MENTIONED AT S.NO.14 OF THE SAID FORM A RE CORRECT. NOW COMING TO THE IMPUGNED ORDER OF THE TRIBUNAL DATED 18.11.2 015, WE FIND THAT THE TRIBUNAL HAS DISMISSED THE APPLICATION OF THE ASSES SEE OBSERVING THAT THE DEPARTMENT HAS PRODUCED THE EVIDENCE REGARDING THE SERVICE OF THE ORDER THOUGH REGISTERED POST AT THE FACTORY ADDRESS OF TH E ASSESSEE AND FURTHER THAT THE ASSESSEE HAS NOT DENIED THE RECEIPT OF THE IMPUGNED ORDER THROUGH REGISTERED POST AT THE CORRECT ADDRESS OF THE ASSES SEE. THAT IT IS ALSO AN ADMITTED FACT THAT IN OCTOBER 2013 THE ASSESSEE HAS RECEIVED A LETTER FROM DISTRICT INDUSTRIES CENTRE, MANDI AT THE ADDRESS OF THE FACTORY PREMISES. THE TRIBUNAL, THEREFORE, CONCLUDED THAT THE ORDER W AS SENT AT THE CORRECT ADDRESS OF THE ASSESSEE. NOW AFTER CONSIDERING THESE FACTUAL AND LEGAL ASPEC TS AND ALSO THE VARIOUS LETTERS ADDRESSED BY THE ASSESSEE TO DIFFE RENT AUTHORITIES, IT IS EVIDENT ON THE FILE THAT THE FACTORY PREEMIES OF TH E ASSESSEE WAS CLOSED 7 DOWN IN THE YEAR 2012, IN PARTICULAR, BEFORE THE P ASSING OF THE IMPUGNED ORDER DATED 12.12.2012 OF THE CIT(A). IT IS ALSO A FACT ON THE FILE THAT A PARTICULAR COLUMN HAS BEEN PROVIDED IN FORM NO. 35 (SUPRA) WHEREIN THE ADDRESS AT WHICH THE NOTICE MAY BE SENT TO APPELLAN T IN RESPECT OF APPEAL BEFORE THE CIT(A) HAS TO BE MENTIONED AND THE ASSES SEE HAS PARTICULARLY MENTIONED THE ADDRESS AS NOTED ABOVE OF HIS C.AS FO R THE SERVICE OF THE NOTICE / CORRESPONDENCE BY THE OFFICE OF CIT(A) WIT H THE ASSESSEE. IT IS ALSO AN ADMITTED FACT ON THE FILE THAT THE OF FICE OF CIT(A) HAS NOT SENT THE COPY OF THE FINAL ORDER OF THE CIT(A ) AT THE ADDRESS AS MENTIONED AT S.N. 14 OF FORM NO. 35 RATHER, THE SAM E WAS SENT AT THE FACTORY PREMISES ADDRESS OF THE ASSESSEE. NO DOUBT THE ASSESSEE HAS PRODUCED ON FILE CERTAIN LETTERS WHICH ARE ADDRESSE D AT THE FACTORY PREMISES OF THE ASSESSEE WHICH SHOWS THAT THOSE LETTERS MIGH T HAVE BEEN RECEIVED BY THE ASSESSEE AT ITS FACTORY PREMISES ADDRESS, BUT I N OUR VIEW, THAT FACT ITSELF IS NOT SUFFICIENT TO HOLD THAT THE ORDER OF THE CIT (A) HAS ACTUALLY BEEN SERVED AT THE CORRECT ADDRESS OF THE ASSESSEE. THE CORRECT ADDRESS FOR CORRESPONDENCE / SERVICE OF NOTICE HAS BEEN PARTICU LARLY PROVIDED IN FORM NO. 35 AND WHEN SPECIFIC ADDRESS HAS BEEN PROVIDED IN FORM NO. 35 FOR SERVICE OF NOTICE / CORRESPONDENCE, THEN, DEPARTMEN T / OFFICE OF CIT(A) WAS SUPPOSED TO SEND THE COPY OF THE NOTICE AT THAT PARTICULAR ADDRESS ONLY. THE ASSESSEE MAY OR MAY NOT ABLE TO RECEIVE THE LET TERS POSTED AT THE FACTORY PREMISES OF THE ASSESSEE. MERELY BECAUSE CE RTAIN LETTERS SENT BY SOME OTHER AUTHORITIES HAVE BEEN RECEIVED AT THE F ACTORY PREMISES OF THE ASSESSEE THAT ITSELF CANNOT BE HELD TO BE A PROOF O F RECEIPT OF THE COPY OF THE ORDER ALSO BY THE ASSESSEE. THE PRESUMPTION IN THIS REGARD COULD HAVE 8 BEEN MADE ONLY IF THE ADDRESS MENTIONED AT S.NO.14 WOULD HAVE BEEN THE SAME ADDRESS AT WHICH THE ORDER WAS SENT FOR, WHICH , IN FACT, IS NOT THE POSITION IN THE PRESENT CASE. IT IS NOT THE CASE OF THE DEPARTMENT THAT THE COPY OF THE ORDER WAS EVER SENT AT THE ADDRESS PROV IDED AT S.N. 14 OF THE FORM NO. 35 (SUPRA). WE THEREFORE, ARE OF THE VIEW THAT A MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE ORDER DATED 18.11.20 15 WHILE MAKING OBSERVATION THAT THE COPY OF THE ORDER WAS SENT AT CORRECT ADDRESS OF THE ASSESSEE. 6. WE HAVE FURTHER NOTED THAT THE FACTS PLEADED IN THE PRESENT MISC. APPLICATION ARE NOT CONTRARY TO THAT WERE MADE IN T HE EARLIER APPLICATION FOR CONDONATION OF DELAY. THE FACTS PLEADED IN THE PRESENT APPLICATION ARE SUPPLEMENTARY TO THE EARLIER APPLICATION FOR CONDON ATION OF DELAY; ANY PLEADING MADE IN THE SAID APPLICATION FOR CONDONATI ON OF DELAY IS NOT ADVERSE OR CONTRARY TO THE PLEADINGS MADE IN THE PR ESENT APPLICATION. 7. THE HON'BLE SUPREME COURT IN THE CASE OF COMMISS IONER OF INCOME TAX VS. J. H. GOTLA [1985] 156 ITR 323 HAS HELD THA T THOUGH EQUITY AND TAXATION ARE OFTEN STRANGERS, ATTEMPTS SHOULD BE MA DE THAT THESE DO NOT REMAIN ALWAYS SO AND IF A CONSTRUCTION RESULTS IN E QUITY RATHER THAN IN INJUSTICE, THEN SUCH CONSTRUCTION SHOULD BE PREFERR ED TO THE LITERAL CONSTRUCTION. THE ABOVE POSITION LAID DOWN BY THE H ON'BLE SUPREME COURT CAN BE WELL APPLIED IN THIS CASE. IN THIS CASE, TH E ASSESSEE HAS NOT ONLY BEEN ABLE TO PROVE THAT THE FACTORY PREMISES OF THE ASSESSEE WAS CLOSED DOWN BUT FURTHER PROVED THAT ASSESSEE HAD PROVIDED A PARTICULAR AND SPECIFIC ADDRESS AT WHICH THE NOTICE INCLUDING THE COPY OF THE ORDER WAS 9 REQUIRED TO BE SENT. IT IS ALSO AN ADMITTED FACT TH AT THE OFFICE OF CIT(A) HAD NOT SENT THE COPY OF THE ORDER AT THAT ADDRESS. THE PARTNERS OF THE ASSESSEE FIRM, HAVE IN THEIR DULY SWORN AFFIDAVITS, HAVE DE POSED THAT THEY HAVE NOT RECEIVED THE COPY OF THE ORDER OF CIT(A) WHICH WAS SENT AT THE FACTORY PREMISES ADDRESS. 8. UNDER THE CIRCUMSTANCES, IT CANNOT BE PRESUMED T HAT THE COPY OF THE ORDER WAS SENT AT THE ASSESSEES CORRECT ADDRESS. T HEREFORE, A MISTAKE HAS OCCURRED, WHICH IS APPARENT, IN THE IMPUGNED ORDER OF THE TRIBUNAL DATED 18.11.2015 AND, THEREFORE, THE IMPUGNED ORDER IS RE CALLED. 9. SINCE WE HAVE ALREADY DISCUSSED THE ENTIRE FACTU AL ASPECTS RELATING TO THE APPLICATION FOR CONDONATION OF DELAY AND IN VIE W OF OUR ABOVE OBSERVATIONS AND FINDINGS GIVEN ABOVE, THE APPLICAT ION OF THE ASSESSEE FOR CONDONATION OF DELAY DESERVES TO BE ALLOWED. WE ORD ER ACCORDINGLY. 10. IN THE RESULT, THE IMPUGNED ORDER DATED 18.11. 2015 IS RECALLED AND FURTHER THE APPLICATION OF THE ASSESSEE FOR CONDONA TION OF DELAY IN FILING THE MAIN APPEAL NO. 268/CHD/2014 IS HEREBY ALLOWED. REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE ASSESSEE FOR HEARING ON ME RITS IN REGULAR COURSE. COPY OF THIS ORDER BE PLACED IN THE APPEAL FILE IN ITA NO. 268/CHD/2014 FOR THE PURPOSE OF RECORD AND READY REFERENCE. ORDER PRONOUNCED IN THE OPEN COURT ON 19.05.2017 SD/- SD/- ( ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19 TH MAY, 2017 10 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR