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Income Tax Appellate Tribunal, JAIPUR BENCH ‘A, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 706/JP/2018
PER VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 18TH January, 2017 of ld. CIT (A), Ajmer for the assessment year 2013-14. There is a delay of 400 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by the Affidavit of the Director of the assessee company. 2. We have heard the ld. A/R as well as the ld. D/R on the condonation of delay in filing the appeal. The ld. A/R of the assessee has submitted that the delay in filing the present appeal is due to the reason that the impugned order dated 18.01.2017 was never served upon or received by the assessee company and only when the assessee enquired from the Office of the ld. CIT (A) regarding the status of the appeal filed by the assessee, it was informed that the appeal was already disposed off vide order dated 18th January, 2017. Thereafter the assessee applied for certified copy of the impugned order which was received by Speed Post dated 3rd May, 2018. Immediately after receiving the certified copy, the assessee filed the present appeal. Thus the ld. A/R has submitted that the delay in filing the appeal is neither intentional nor willful but due to the reason of non receipt of the impugned order by the assessee. Thus the ld. A/R has pleaded that the delay in filing the appeal may be condoned and since the impugned order as well as the order of the AO were passed ex parte, therefore, the matter may be set aside to the record of the ld. CIT (A).
On the other hand, the ld. D/R has vehemently opposed the condonation of delay and submitted that there is an inordinate delay of 400 days in filing the present appeal and the assessee has not explained a reasonable cause for such delay. The ld. D/R has further contended that the reasons explained by the assessee are even contrary to the facts on record. The notice issued by the ld. CIT (A) as well as the order was sent to the correct address of the assessee as given in the Memo of the party as well as in From No. 36 of the present appeal. Once the notice issued by the ld. CIT (A) as well as the impugned order were sent at the correct address of the assessee, then the question of non receipt of the impugned order as well as the notice issued by the ld. CIT (A) does not arise. The ld. D/R has thus contended that the reasons and cause of delay explained by the assessee cannot be considered as reasonable.
4. We have considered the rival submissions as well as the relevant material on record. The assessee has explained the delay of 400 days in filing the appeal that the impugned order passed by the ld. CIT (A) was not received or served upon the assessee. In the affidavit, the Director of the assessee company has explained the possible reason of non receipt of the order as change of address of the assessee company. We note that the address of the assessee company though changed but the said change was already effected prior to the filing of the appeal before the ld. CIT (A) and the assessee has given the current address in Form No. 35 which is also mentioned in the impugned order of the ld. CIT (A). Therefore, the change of address cannot be a reason for non receipt of the notice as well as the impugned order by the assessee because the appeal before the ld. CIT (A) was filed by the assessee by giving the current address and not the old address. We further note that the ld. CIT (A) has dismissed the appeal of the assessee for want of any submission or other supporting evidence and, therefore, in the facts and circumstances of the case and in the interest of justice, we are of the considered view that though the assessee is guilty of negligence in not appearing before the AO as well as before the ld. CIT (A) and further not filing the appeal within the period of limitation before the Tribunal, however, since the orders of the authorities below are passed ex parte, therefore, we condone the delay of 400 days in filing the present appeal subject to cost of Rs. 5,000/-. The assessee has raised the following grounds of appeal :-
“ 1. On the facts and in the circumstances of the matter the ld. CIT (A) has grossly erred in upholding the assessment completed u/s 144 without service of notice/questionnaire u/s 142(1) of the Act. The appellant thus prays that the ex-parte assessment completed without a valid notice/questionnaire u/s 142(1) served upon the appellant is bad in law and deserves to be quashed/cancelled.
1.1. That the ld. CIT (A) further erred in upholding the assessment completed ex-parte by ld. AO, when no such notices fixing any hearing was ever received by the appellant. The appellant prays that assessment thus completed ex parte without valid service of any notice fixing the hearing deserves to be held bad in law, and the assessment deserves to be quashed.
Without prejudice and in the alternate :
On the facts and in the circumstances of the matter the ld. CIT (A) has erred in confirming the addition of Rs. 1,23,95,802/- made by wrongly invoking provisions of Sec. 145(3) of the Act and arbitrarily estimating the NP @ 8% without any basis. The appellant prays that the addition so made deserves to be deleted.
3. Pm the facts and in the circumstances of the matter the ld. CIT(A) has grossly erred in confirming the addition of Rs. 9,78,54,350/- made by erroneously treating the amount of share capital received during the year as unexplained u/s 68 of the Act. The addition so made deserves to be deleted.
That the ld. CIT (A) has further erred in confirming addition of Rs. 2,58,61,822/- made arbitrarily by treating the unsecured loans as unexplained u/s 68 of the Act. The addition so made deserves to be deleted.
5. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”
At the outset, we note that the orders passed by the AO as well as the ld. CIT (A) are ex parte and without considering any documentary evidence to be filed by the assessee, hence the matter is set aside to the record of the ld. CIT (A) for granting one more opportunity of hearing to the assessee and then decide the 5 M/s. Goyal Infradevelopers (I) Ltd., Jaipur. matter afresh after considering the arguments as well as the documentary evidence, if any, to be filed by the assessee. 6. In the result, appeal of the assessee is allowed for statistical purposes.