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Income Tax Appellate Tribunal, [ DELHI BENCH “F”: NEW DELHI ]
Before: SHRI AMIT SHUKLA & DR. B.R.R. KUMAR
O R D E R PER AMIT SHUKLA, J. M.
This appeal has been filed by the assessee against the impugned order dated 14.01.2016passed by the ld. Commissioner of Income Tax, Meerut, for assessment year 2008-09.
The assessee has raised the following grounds of appeal:-
“1. That on the facts and circumstances of the case and in law, the learned CIT(A) erred in holding the delay in filling the appeal cannot be condoned. The appellant prays that the delay be condoned and appeal should be taken for hearing. 2. That on the facts and circumstances of the case and in law, the learned C1T(A) erred in not deciding the issue on merits. 3. That the addition made by Ld. A.O. and confirmed by Ld. CIT(A) is Page | 1 against the facts and submission made by the assessee before the Ld. A.O. and CIT(A). Ld. A.O. ignored the sales tax proceeding in which Sh. RadheyShyam Mittal has treated main culprit and he also committed his offence. Assessee cannot penalize against the crime committed by some other person. “
Before us, the ld. Counsel for the assessee submitted that here in this case, penalty was levied on the assessee at Rs.8,81,70,704/-, which in the first round, was confirmed by the ld. CIT (Appeals). The ld. CIT (Appeals) had dismissed the appeal of the assessee on the ground that there was delay in filing of the appeal. In the second appeal, the Tribunal remanded back the issue to the file of the ld. CIT (Appeals) with a direction that assessee should file application for condonation of delay along with its evidence before the ld. CIT (Appeals). Again before the CIT (Appeals) assessee had filed an application for condonation of delay vide letter, which is placed on record. It was pointed out that the assessee could not receive the penalty order and when assessee came to know later on, he had filed application for obtaining the penalty order under Section 271(1)(c) of the Act on 18.01.2013 and immediately after receiving of the order appeal was filed. The assessee has also filed an affidavit stating all the facts along with the petition for condonation of delay. The ld. CIT (Appeals) had asked for the report from the Assessing Officer to verify whether the impugned penalty order was served on the assessee or not. In the report the ld. Assessing Officer submitted that the penalty order was dispatched to the assessee by Speed post and there is no evidence of return of the Speed post. The ld. CIT (Appeals) in the second round of appeal held that, the affidavit of the assessee is not accompanied by any evidence and therefore, it is a bald statement and without adjudicating the penalty on merits he has again dismissed the appeal holding that it is not a fit case for condonation of delay.
The ld. DR relied on the orders of the lower authorities.
We have heard both the parties and perused the relevant material placed on record. Here in this case penalty under Section 271(1)(c) of the Act was levied vide order dated 23.05.2012 for sum of Rs.8,81,70,704/-. In the appeal filed before the CIT (Appeals) same was dismissed on the ground that Page | 2
the appeal was filed belatedly and without giving opportunity to the assessee for filing the application for condonation of delay. It was in this background that the Tribunal remanded back the matter to the ld. CIT (Appeals) with a direction to the assessee that application for condonation of delay should be filed along with its evidence. The matter was sent back to the ld. CIT (Appeals) again. The assessee filed an application for condonation of delay wherein it was stated that the penalty order under Section 271(1)(c) of the Act passed by the Assessing Officer could not be received by the assessee and it was only after assessee coming to know about the passing of penalty order when the demand was pressed, then assessee had obtained the copy of the order and filed appeal immediately. The application of the assessee for applying of the penalty order as mentioned in hi petition for condonation of delay has not been disputed by the Assessing Officer or CIT (A). This inter- alia means that assessee’s contention was right. Again the ld. CIT (Appeals) without deciding the issue on merits has dismissed the appeal in limine on the ground that assessee could not properly explain the delay in filing of appeal in January, 2013. Now after four years of the pending lis, the Assessing Officer has sent a report that penalty order was dispatched through Speed post and there is no evidence of returning back of Speed post. However, no where there is any proof of acknowledgement that the order sent was served on the given address or to the assessee. Simply because the Speed post sent has not returned back does not mean that the assessee has received the order or post was delivered to the assessee. If assessee has made an averment on oath in the affidavit stating that he has not received the order and there was no willful default by the assessee, we do not find any reason why the ld. CIT (Appeals) should deny justice to the assessee and not decide the appeal on merits. The levy of penalty has a very serious consequence leading to various penal action, atleast in the interest of substantial justice, the marginal delay should have been done and appeal should have been decided on merits rather than on two occasions dismissing the assessee’s appeal and denying the legal remedy for getting justice. Simply the Speed post was not returned back then where is the provision to assumption of service, unless there is an acknowledgement that the notice was served on the assessee. Accordingly, we direct the CIT
(Appeals) to condone the delay and remit the matter back to the file of the CIT (Appeals to decide the issue on merits prevalent within six months from the date of receipt of this order.
Thus, the appeal of the assessee is allowed, for statistical purposes.
Order pronounced in the open court on : 07/12/2021.