SHRI RAM KISHOR SAINI,JAIPUR vs. INCOME TAX OFFICER, WARD-7-4, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe 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.188 &189/JP/2019 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Shri Ram Kishor Saini The ITO, Vs. Prop. M/s Saini Service Station, Ward-7(4), Tehsil- Jamwa Ramgarh, Jaipur. Jaipur-303109. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AJXPS 0725 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (C.A.) jktLo dh vksj ls@ Revenue by : Miss Chanchal Meena (ACIT) lquokbZ dh rkjh[k@ Date of Hearing : 24/08/2020 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 25/08/2020 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. These two appeals by the assessee are directed against two separate orders of ld. CIT(A)-III, Jaipur both dated 22.01.2019 arising from assessment order passed U/s 144//147 & and U/s 271(1)(c) of the IT Act respectively for the assessment year 2008-09. Due to prevailing COVId-19 pandemic condition the hearing of the appeal is concluded through video conference. The assessee has raised the following grounds in these appeals:-

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

ITA No. 188/JP/2019 (Assessee’s ground)

“1. On the facts and in the circumstances of the case, ld. CIT(A) has grossly erred in rejecting the appeal of assessee in limine solely for the reason that appeal was filed belatedly. Appellant prays that delay in filing appeal was due to bona fide reasons which were duly explained and thus the delay deserved to be condoned. 1.1 That Ld. CIT(A) further erred in alleging that the assessee had tried to mislead the department by mentioning the date of service of order as 02.02.2017, when the order was served on 25.09.2016. Appellant prays that the date of service of certified order to the assessee was 02.02.2017 as the original order alleged to be served on assessee was in fact never received by the assessee. And further so, there was no question of misleading the department as, the assessee had duly mentioned in form 35 that the appeal as being filed after a delay and also submitted detailed reasons for delay in the appeal memo. Appellant prays that such remarks by Ld.CIT(A) being unreasonable deserve to be rolled back and the delay being genuine deserve to be condoned. 2. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in upholding the assessment completed u/s 147 of the Income Tax Act, 1961 where no notice u/s 148 was ever served upon / received by the assessee. Appellant prays that such reassessment proceedings concluded are in violation of provisions of sec 148 of the Act, and against the principles of natural justice thus the consequent order passed deserves to be quashed. 2.1 That Ld. CIT(A) further erred in not appreciating the fact that reasons were recorded based on incorrect fact that no return of income was filed u/s 139(1) of the Act, though was duly filed. Appellant prays that the invocation of reassessment

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

by issuing notice u/s 148 of the act, is bad in law and the consequent order passed deserves to be quashed/ annulled. 3. On the facts and in the circumstances of the case, ld. CIT(A) has grossly erred in confirming the addition of Rs. 6,54,434/- to total income of the assessee, made by invoking provisions of sec 69A of the Act, by holding the same as made out of undisclosed sources, without appreciating the submissions filed. Appellant prays that, the same thus deserves to be deleted; 3.1 That on facts and in circumstance of the matter, Ld.CIT(A) has further erred in confirming the addition of Rs. 6,54,434/- made by ld.AO by alleging the deposits as unexplained when he has himself had duly verified and accepted the source of such deposits as being sale proceeds from business activities of the assessee. Appellant prays that such addition being made purely on assumption basis deserves to be deleted. 4. On facts and in circumstances to the matter the Ld. CIT(A) grossly erred in upholding the addition of Rs. 69,597/- made by alleging the same to be undisclosed interest from Saving Bank account of the assessee, when in fact no such entry was found in the bank statement of the assessee. Appellant prays that such addition being absolutely baseless deserves to be deleted.”

189/JP/2019 (Assessee’s ground)

“1. On the facts and in the circumstances of the case, Ld. CIT(A) has grossly erred in dismissing the appeal in limine arbitrarily solely for the reason that appeal was filed belatedly. Appellant prays that delay in filing appeal was due to bona fide reasons which were duly explained and thus the delay deserved to be condoned. 1.1 That Ld. CIT(A) further erred in alleging that the assessee had tried to mislead the department by mentioning the date of service of order as 02.02.2017, when the penalty order was 3

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

served on 25.09.2016. Appellant prays that the date of service of certified order to the assessee was 02.02.2017 as the original order alleged to be served on assessee was in fact never received by the assessee. And further so, there was no question of misleading the department as, the assessee had duly mentioned in form 35 that the appeal as being filed after a delay and also submitted detailed reasons for delay in the appeal memo. Appellant prays that such remarks by Ld.CIT(A) being unreasonable deserve to be rolled back and the delay being genuine deserve to be condoned. 2. That on fact and in circumstances of the case Ld.CIT(A) erred in confirming penalty imposed by Id. AO, when the notice u/s 274 r.w.s.271(1)(c) was issued without specifying the limb under which penalty was sought to be levied. This being against the provisions of law and in violation to well- settled prepositions of various judicial pronouncements. Appellant prays that the penalty order deserves to be quashed/set aside. 3. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in confirming the penalty of Rs. 2,41,271/- u/s 271(1)(c) levied by Ld. AO on the assessee without service of notice and without any basis and reason.”

that the ld. CIT(A) dismissed the appeals of the assessee in limine after

rejecting the condonation of delay in filing the appeals before the ld.

CIT(A). He has submitted that the assessee has dully explained the

cause of delay in the application for condonation of delay filed before

the ld. CIT(A). It was pointed out that the assessee was suffering from

various diseases and finally had paralysis attack in the month of July,

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

2015 and he was under medical treatment and bed rest for long time.

The assessee could not receive the notices as well as the orders of the

Assessing Officer. The assessee has explained the sufficient cause for

delay in filing the appeals before the ld. CIT(A) however, ld. CIT(A) has

declined to condone the delay and dismissed the appeals in limine. The

ld. AR of the assessee has further pointed out that for the assessment

year 2008-09 as well as 2013-14 this Tribunal in the appeals against the

levy of penalty U/s 271(1)(b) of the Act in ITA No. 1289 &

1290/JP/2018 vide order dated 23.04.2019 has considered an identical

issue of condonation of delay declined by the ld. CIT(A) and has

condoned the delay in filing the appeals before the ld. CIT(A) and

restored the matter back to the record of the ld. CIT(A).

rejected the application for condonation of delay after noting the facts

that the assessee has misled the ld. CIT(A) by giving incorrect facts.

Thus, the ld. DR has objected to the condonation of delay and relied

upon the orders of the ld. CIT(A).

material on record. There were delay of 308 days and 127 days

respectively in filing the appeals by the assessee before the ld. CIT(A).

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

The assessee has explained the cause of delay which has been

reproduced by the CIT(A) as under:-

“The assessee is 71 years old person and he was suffering with various diseases including BP, Sugar and paralysis attack since July 2015 and he was under medical treatment of above deceases and he was complete bed rest since July 2015 to January 2017. He was not at business premises and he was not aware about delivery of order and could not receive assessment order from Income Tax Department. Therefore, it is true facts that he did not receive assessment order for the AY 2008-09 from income tax department. During the treatment of the assessee, whole family members were in tension about survive of the assessee and they were also not aware about income tax assessment order. The assessee was having only one son and he was doing care of the assessee with the help of doctor and by consulting with various doctors. Family of the assessee were in tension when the assessee suffered paralysis attack and they were praying to god for assessee's survival. Please find attached herewith medical certificate of Dr. Rajendra Prasad Sharma, Medical Officer of Samudayik Sawasthya Kendra, Jamawaramgarh, Jaipur and MRI Brain Report of Santokba Durlabhji Memorial Hospital and Medical Report of Vaibhav Imaging Centre. After getting treatment from hospital, the assessee visited to income Tax office and he came to know that assessment order and demand notice have been served to the assessee. On dated 30/01/2017, the assessee submitted to the Ld AO that he was hospitalised and not well and he was not aware about delivery of assessment order. If the income tax department had delivered the assessment order to someone in petrol pump than it cannot treated as service/ delivery of order. The assessee has also submitted that he has not authorised to any person to receive the notice and orders on his behalf so it is wrong and in justice by 6

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

saying that the order has been delivered to the assessee. The assessee is an individual and the notice and orders must be served to him only unless he authorised to someone. It is an important documents and department cannot delivered to someone else. Further on dated 30/01/2017, the assessee applied to the ITO ward 7(4), Jaipur for copies of assessment order by depositing fee of Rs 100/-. On dated 02/02/2017, he received copies of the assessment orders for the AY 2008-09. The assessee immediately consult with CA and filed the Appeal on dated 01/03/2017 before your honour that is within 30 days of receiving orders. Therefore, you are humble requested to kindly condone the delay of filing the appeal because the assessee was having valid reason which was beyond his control.” The ld. CIT(A) has declined the condone of delay by noting the facts

the demand notice was served upon the assessee on 29.03.2016 and

not on 02.02.2017 as stated by the assessee. The relevant part of the

order of the ld. CIT(A) in para 3 is as under:-

“3. I carefully considered the condonation delay application I find that the appellant mislead the revenue mentioning the service date of demand notice in form No. 35 as 02/02/2017 which is wrong. The demand Notice on the appellant served on 29.03.2016. It shows that the intention of the appellant is that he concealed the facts and after thought he made the story for delay of 308 days. These facts prove that there was no genuine cause which prevent the appellant to file the appeal in time. Therefore I rejected the condonation delay petition and the appeal is dismissed at admission stage.”

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

Thus, it is clear that because of the discrepancy in mentioning the

date of receipt of demand notice as on 02.02.2017 the ld. CIT(A)

rejected the application for condonation of delay in both the appeals.

It is pertinent to note that the alleged service of demand notices

may be served at the working placed of the assessee but not to the

assessee in person and further the assessee has explained the cause

of delay as he was suffering from various diseases and had an attack

of paralysis and under treatment for long time. Therefore, at the time

of considering the sufficient cause of delay a lenient view ought to

have been taken. The Coordinate Bench this Tribunal while considering

the issue of condonation of delay which was declined by the ld. CIT(A)

in assessee’s own case arising from the penalty levied U/s 271(1)(b) of

the Act vide order dated 23.04.2019 in ITA No. 1289 & 1290/JP/2018

has held in para 3 and 4 are as under:-

“3. There was delay in filing appeal before the ld. CIT(A). By the impugned order the ld. CIT(A) has dismissed the appeals on the ground of delay. Before the ld. CIT(A) the assessee submitted the following submissions:- “ The appellant was suffering with various diseases including BP, Sugar and paralysis attack since July 2015 and he was under doctor treatment of above disease and was on bed rest so he could not received personally notices, order from the department. It may be possible that department was sent the notices and order on the address of business premises but due to bed rest at 8

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

home., the appellant could not received the notices and orders. The notices and order may be received by his staff or by his family members but they could not appreciate the priority of the notices and orders. Moreover whole family members were suffering in tension during the paralysis attack to the appellant. The appellant came to know about the demand of Income Tax on 30/01/2017 when he received information about bank account seize and at once he discussed the matter with professional and on dated 31/01/2017 applied to the ITO war 7(4), Jaipur for true copies of orders on dated 02/02/2017 from ITO. Now the appellant is filing the appeal before your honour within 30 days of receiving the order. So you are requested to kindly condone the delay because the appellant was having reason beyond his control and due to sickness of paralysis attack, regular BP and Sugar, he could not submitted appeal within time.” 4. It is clear from the above that the assessee is suffering from various diseases and therefore neither could attend the assessment proceedings nor could appoint the advocate or C.A to represent the case. His son Shri Surendra Saini had attended the proceedings, who was not fully aware of the affairs of the business and had little knowledge about the income Tax provisions. The assessee’s son attended office in response to notice which was delivered to him and remaining notices as mentioned in the order were never served to the assessee. The AO has completed the assessment u/s. 144/147 of the I.T.Act, 1961 on dated 14/03/2016 on total income of Rs.10,36,120/- without serving notices and without allowing sufficient opportunity. As the notices could not be served on the appellant hence the appellant could not appear before the ld AO during assessment proceedings. On dated 02/02/2017, the assessee applied for true copies of notices and assessment orders and filed the appeal before the ld. CIT(A). Further, therefore, proper compliance of various notices could not be made. In this connection medical papers regarding various ailments of the assessee are enclosed, which have been verified by me. 9

ITA No.188 & 189/JP/2019 Shri Ram Kishor Saini vs. ITO

Therefore, in the substantial intertest of justice, I condone the delay ( of 125 days) in filing the appeal before the ld. CIT(A) and the matter is restored back to the file of the ld. CIT(A) for deciding the matter/appeals afresh on merits/material available on record, after giving due opportunity of hearing to assessee. The assessee is also directed to appear before the ld. CIT(A) within 60 days from the receipt of this tribunal order. We direct accordingly. Grounds raised by the assessee in both the appeals are allowed for statistical purposes.”

Accordingly, in the facts and circumstances of the case and in view of

the order of the Coordinate Bench of this Tribunal in assessee’s own

case we condone the delay of 308 days and 127 days respectively in

filing these appeals before the ld. CIT(A). Since, the ld. CIT(A) has not

decided the appeals on merits therefore, the matters are set aside to

the record of the ld. CIT(A) for adjudication of the same on merits after

giving appropriate opportunity of hearing to the assessee.

In the result, the appeals of the assessee are allowed for

statistical purposes.

Order pronounced in the open court on 25/08/2020. Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 25/08/2020. 10

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सहायक पंजीकार@Aेेज. त्महपेजतंत