MANISH BHARDWAJ,JAIPUR vs. ITO, WARD-1(1), GURGAON

These are the four appeals filed by the same assessee for assessment year 2009-10 and, therefore, they were heard together and disposed of, by this common order.

I.T. Appeal 5180 (Del) of 2017 is filed by the assessee against the order passed by the ld. CIT (Appeals)-1, Gurgaon, dated 18.10.2016 for assessment year 2009-10 wherein the appeal of the assessee filed against the order of Income-Tax Officer, Ward : 1(1), Gurgaon, passed under Section 144 of the Income Tax Act was dismissed as the appeal was filed out of time and held to be not maintainable. 3. The appeal of the assessee was filed on 8.05.2015 wherein the ld. CIT (Appeals) noted that assessment order was served on the appellant on 02nd March, 2015. The assessee furnished request for condonation of delay in filing of the appeal which is Page | 1 reproduced by the ld. CIT (Appeals) in para No. 2.1 of the order. The crux of the condonation request was made that that assessee is an Individual carrying on the profession of tourist guide at Jaipur, Rajasthan. This was the first year of the scrutiny assessment. Assessee submitted that till assessment year prior to this he was carrying on business of tours and travels at Gurgaon, Haryana and regularly filing his return of income. Those returns were accepted as it is. From assessment year 2010-11 he shifted his base from Gurgaon to Jaipur. Despite change in his address of business to different state, the e-filing return for subsequent years also showing the jurisdiction as per data base as of DCIT, Circle, Gurgaon, undoubtedly the assessee did not change his jurisdiction by making necessary application, therefore, despite staying in Jaipur his jurisdiction remained with Gurgaon. The claim of the assessee is that he did not have any contact or office at Gurgaon when the assessment for the impugned assessment year took place. He came to know about this order after the orders of the Hon’ble High Court. He also came to know that assessment orders were passed under Section 144 of the Act and were sent to his Gurgaon office address which assessee never received. For this reason also he could not respond to any of the notices also during the course of assessment proceedings. He also came to know that the penalty orders under Section 271(1)(b) and 271(1)(c) of the Act were also passed levying penalties under those sections. As the assessee was not aware about all these proceedings he could not respond by filing appeal or appearing before the Assessing Officer. Subsequently on 14.07.2014, his bank account at Gurgaon was attached and the bank authorities issued the demand draft in favour of the tax authorities which he came to know by order dated 21.07.2014 of the bank. Subsequently, he also approached the Income Tax authorities. In absence of any response, he moved the Hon’ble Punjab & Haryana High Court by filing the writ petition No. 1512/2015.

I.T. Appeal 5179 (Del) of 2017 is against the order passed under Section 154 of the Act for AY 2009-10 by the Assessing Officer wherein the commission income was omitted to be addded back in the original assessment and so in absence of the assessee he passed an order under Section 154 of the Act which is also challenged. The order of the ld. CIT (Appeals) was also on the similar line dismissing it as not maintainable.

I.T. Appeal 5177 (Del) of 2017 is filed against the order of the ld. Assessing Officer passed under Section 271(1)(b) of the Act dated 28.06.2012 levying a penalty of Rs.10,000/- which is also dismissed by the ld. CIT (Appeals) as not maintainable.

I.T. Appeal 5178 (Del) of 2017 is filed by the assessee against the order passed under Section 271(1)(c) of the Act on 27.06.2012 levying a penalty of Rs.25,17,387/- which also was dismissed by the ld. CIT (Appeals) as not maintainable.

The ld. AR submitted facts stated before ld. CIT (A) , that the delay caused for merely 36 days and should have been condoned by the ld. CIT (Appeals) by admitting those appeals and deciding on the merits. 8. The ld. Senior DR vehemently supported the order of the ld. CIT (Appeals) treating that assessee did not inform his change of address and also failed to explain the delay, hence it is correctly held to be non-maintainable by the CIT (Appeals). 9. We have carefully perused the order of the ld. CIT (Appeals) where the delay of 36 days has not been condoned in all these four appeals. On careful perusal of the facts, we find that there is a change in the business place of the assessee from Gurgaon to Jaipur and, therefore, orders were not served on the assessee and, therefore, there was a delay of 36 days in filing of these appeals. The Hon’ble Supreme Court of India in Collector, Land Acquisition Vs. Mst. Katiju & Others in 1987 AIR 1353 has held that ordinarily a litigant does not stand to benefit by filing appeal late. The refusal of admitting the appeal can result in meritorious matter being drawn out at the thresh-hold and cause of justice is defeated. When substantial justice and technical consideration are pitted against each other the cause of substantial justice deserves to be preferred. In the present case, in peculiar circumstances and the facts we find that there is a sufficient cause which caused delay in filing of the appeal for which intervention of Hon’ble High Court was also sought. Therefore, in our view the ld. CIT (Appeals) should have condoned the delay in these appeals. Further the final opportunity granted by the ld. CIT (Appeals) could also not be communicated to the assessee as mentioned in the order itself. In view of the above facts, we condone the delay in filing of all these appeals before the CIT (Appeals) and direct the ld. CIT (Appeals) to decide the issues on merits of the case. 10. In the result, all the four appeals are allowed and restored back to the file of the ld. CIT (Appeals).