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Income Tax Appellate Tribunal, JAIPUR BENCHES ”B” JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 215, 216, 217 & 218/JP/2019
PER BENCH:
These are four appeals filed by the assessee against the respective orders of ld. CIT(A)-3, Jaipur dated 26.12.2018 pertaining to assessment year 2008-09.
The hearing of the matter was scheduled through Video Conferencing in view of ongoing COVID-19 pandemic situation in the country. It is noted that all these appeals have been dismissed by the ld. CIT(A) at the admission stage rejecting the petition of the assessee seeking condonation of delay in filing the respective appeals.
ITA No. 215, 216, 217 & 218/JP/2019 2 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur 3. During the course of hearing, the ld. AR taken us through the assessee’s petition seeking condonation of delay wherein the assessee has stated that he was residing at B-85, Triveni Nagar, Jaipur till 2008. Thereafter, he shifted to Delhi NCR and subsequently, he returned to Jaipur in April 2017. It was further submitted that he received telephonic intimation from the office of ITO, Ward 7(1), Jaipur on 18th of August 2017 and he got to know about the pending demands against him. He met the concerned ITO, Ward 7(1), Jaipur and obtained copy of the demand and other notices from his office on 22.08.2017 and thereafter, filed the appeal on 15.09.2017. It was submitted by the ld. AR that there was a reasonable cause for the delay in filing the appeal before the ld. CIT(A) due to the fact that assessee had shifted to Delhi and notices and order were sent at the Jaipur address which were not received by the assessee. It was further submitted that in the PAN database, the assessee’s Delhi address has been stated and inspite of said fact being in the knowledge of the Assessing Officer, notices and subsequent order were dispatched at the Jaipur address which due to non-availability of the assessee at Jaipur address remained uncomplied with. It was submitted that only on 18th of August 2017, the assessee first came to know about these demand notices and orders and he immediately met the official of the ITO, Ward 7(1) and all the copies of the demand notices and other orders were collected on 22.08.2017. Thereafter, the appeal was filed on 15.09.2017. It was accordingly submitted that since the assessee did not receive the assessment order so passed by the Assessing Officer in time and had received the same only on 22.08.2017, the ld. CIT(A) should have appreciated the said facts and should have condoned the delay in filing the present appeal.
ITA No. 215, 216, 217 & 218/JP/2019 3 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur However, he has summarily dismissed the condonation petition stating that no genuine cause has been shown by the assessee which prevent the assessee to file the appeal in time.
It was further submitted by the ld AR that the addition has been made by the Assessing Officer in respect of credit card expenses amounting to Rs. 2,10,846/-. It was submitted that the said credit card was a SBI corporate credit card issued to the assessee at the relevant point in time when he was the employee of Genpact India Pvt. Ltd. for meeting official expenses. All these expenses incurred through the credit card were for official purposes and payment have been made directly by the assessee’s employer i.e. Genpact India Pvt. Ltd. to SBI credit card. Further, Genpact India Pvt. Ltd. has also issued a confirmation letter regarding uses of the SBI credit card. It was accordingly submitted that there is no basis for making the addition in the hands of the assessee in respect of the expenses incurred for official purposes through the credit card.
It was further submitted that the Assessing Officer has also brought to tax the salary income of Rs. 3,12,159/-. However, the actual salary figure is lower than the said amount and even TDS credit has not been granted by the Assessing Officer. It was submitted that Form 16 issued by the employer, Genpact India Pvt Ltd shows clearly the salary income and corresponding TDS which should be allowed to the assessee.
ITA No. 215, 216, 217 & 218/JP/2019 4 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur 6. It was accordingly submitted that the assessee had reasonable cause for the delay in filing the present appeal before the ld. CIT(A) due to non-receipt of the order and even on merits, there is no basis for making the addition in the hands of the assessee. In light of the same, it was submitted that the assessee may be granted an opportunity to represent his case on merits and the matter may be set aside to the file of ld. CIT(A) to decide the same on merits.
Per contra, the ld. DR submitted that it is a case where the assessment was completed u/s 147 r/w section 144 of the Act. It was submitted that notice u/s 148 was issued by ITO, Ward 7(1), Jaipur on 16.03.2015 and as per assessee’s own submission, at that point of time, he had shifted back to Jaipur and therefore, the contention of the ld. AR that the assessee was not available at Jaipur address to receive notices and also the impugned order passed by the Assessing Officer was not received cannot be accepted. It was submitted that it is a case where the assessee has not filed the return of income and the notices and subsequent order were dispatched at the address available with the Assessing officer. On merits, it was submitted that since the assessee had not complied with the notices issued during the course of assessment proceedings and given that the credit card was issued in the name of the assessee, the Assessing officer had no other option but to make the addition towards the unexplained expenditure and passed the order u/s 144 of the Act. It was accordingly submitted that the ld. CIT(A) has rightly held that there was no genuine cause which prevented the assessee to file the appeal in time. Accordingly, the
ITA No. 215, 216, 217 & 218/JP/2019 5 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur appeal was dismissed at the admission stage itself. It was accordingly submitted that the action of the ld. CIT(A) may kindly be confirmed.
We have heard the rival contentions and perused the material available on record. We find that the assessment order u/s 147 read with 144 was issued by the Assessing Officer on 05.03.2016 in assessee’s name having PAN no. AAFPL055IL with Jaipur address i.e, B- 85, Triveni Nagar, Jaipur. Further, in the computation form, detailing the income and tax liability, attached with assessment order, the address of the assessee has been stated as Guru Nanak Market, New Delhi-110024. Therefore, there were two addresses of the assessee available with the Assessing officer. The contention of the assessee is that since he had shifted to Delhi, he didn’t receive the notices and the impugned assessment order dated 5.03.2016 addressed at the Jaipur address and once, he shifted back to Jaipur in April 2017, he got to hear from the Assessing officer sometime in August 2017, he collected the notices and the impugned assessment order and filed the appeal before the ld CIT(A) in September 2017. Further, the ld AR has stated at the Bar that in the PAN database, the New Delhi address of the assessee has only been shown. We therefore find that the assessee seems to have two addresses in Jaipur as well as in New Delhi and at the time of issue of assessment order which was dispatched at the Jaipur address, he was not residing at the Jaipur address and further, in the department PAN database, the assessee’s Delhi address has been stated. It is however unclear whether at the assessee’s Jaipur address, the house was locked or anyone else was residing and if yes, whether the assessee was informed about the assessment order. It is also
ITA No. 215, 216, 217 & 218/JP/2019 6 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur unclear whether the assessment order so dispatched by the Assessing officer was delivered or returned unserved. At the same time, it is a settled position that all notices and communication should be addressed to the assessee at the address given in the department PAN Database and where there is a change, it is incumbent on the assessee to inform the tax department and seek necessary modification. In the instant case, the assessee’s Delhi address was stated in the PAN database and which has not been disputed by the Revenue. Therefore, in such a scenario, the notices and other communication should have been addressed at the Delhi Address stated in the PAN database and in a scenario, where the same is returned undelivered, then recourse can be had by serving the same at the other address available with the Assessing officer. In light of the above, we find that there is a reasonable cause for the delay in filing the appeal before the ld CIT(A) where the assessee is disputing the timely receipt of the assessment order. Therefore, in the interest of justice and fair play and given that the appeal has been dismissed at the admission stage, we hereby condone the delay in filing the present appeal before the ld. CIT(A) and the matter is set aside to the file of ld. CIT(A) to provide one more opportunity to the assessee. We make it clear that the contentions on merits though advanced by the ld. AR are not adjudicated upon and left upon and the assessee is at liberty to raise the said contentions before ld. CIT(A) who shall consider the same after providing reasonable opportunity to the assessee.
The other three appeals are against levy of penalty u/s 271(1)(c), 271F and 271(1)(b) wherein we find that under similar fact pattern,
ITA No. 215, 216, 217 & 218/JP/2019 7 Sh. Mark Lee, Jaipur vs. ITO, Ward 7 (1), Jaipur there is delay in filing the appeals before the ld CIT(A) who has dismissed the appeals at the admission stage rejecting the petition for condonation of delay. Therefore, following the reasoning and directions contained in the aforesaid quantum matter, the delay in filing these appeals is hereby condoned and matter is set aside to the file of ld. CIT(A) to decide on same on merits after providing reasonable opportunity to the assessee.
In the result, all four appeals are allowed for statistical purposes.
Order pronounced in the open Court on 15/07/2020.
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