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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
ITA 173/2015 Hemantkumar Pandey IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE Before Shri Kul Bharat, Hon’ble Judicial Member and Shri Manish Borad, Hon’ble Accountant Member ITA No. 173/Ind/2015 A.Y. 1991-92 Hemantkumar Pandey Khandwa ::: Appellant Vs ACIT Circle Khandwa ::: Respondent Appellant by Shri S.K. Pandey Advocate with assessee Respondent by Shri K.G. Goyal Date of hearing 25.5.2018 Date of pronouncement 31.5.2018 O R D E R PER SHRI MANISH BORAD, AM
This appeal of the revenue relating to the
assessment year 1991-92 is directed against the order of
the Commissioner of Income Tax (Appeals)-II, Indore, dated
28.11.2014 which is arising out of the order u/s 143(3) of
the Income Tax Act (in short referred as ‘Act’) Act framed by
the ACIT, Circle 2(2), Khandwa. 1
ITA 173/2015 Hemantkumar Pandey 2. The assessee has taken the following grounds :-
“(i) That, the assessment order was not served though the
same was passed on 22.3.1994 the counsel of the
assessee obtained the certified copy of the sasme on
27.11.2002 but failed to take legal recourse and no
reminder was served to the assessee till now. Hence
assessee should not be punished for the fault committed
by the counsel as assessee was busy in serving his ill
father. It was only on 30.6.2012 when the case was
handed over to us and we had filed the appeal on
27.7.2012 to the Hon'ble CIT-2(Appeal) and there was no
delay on behalf of the assessee
(ii) That, the ld. A.O. has completed the assessment u/s 144
of the Income tax Act to the best of his judgment without
giving final opportunity of being heard so the assessment
was bad and illegal.
ITA 173/2015 Hemantkumar Pandey (iii) That the ld. A.O. has erred in assessing income at Rs.
75,000/- on the basis of additions made in A.Y. 1990-91
to the returned income.
(iv) That the basis on which the above additions were made
no longer exist as the same (A.Y. 1990-91) have been
deleted in full after the order of Income tax Appellate
Tribunal bench Indore. Hence, the additions made by the
ld. A.O. may kindly be deleted in full.
(v) That on the facts and in the circumstances of the case,
the addition is wrong and the same required to be
deleted.”
Briefly stated, the facts, as culled out from record, are
that the ex-parte order u/s 144 of the Act was framed
in the case of the assessee on 22.3.1994 assessing the
total income at Rs. 75,000/-. Against this order, the
assessee went in appeal to the learned Commissioner of
ITA 173/2015 Hemantkumar Pandey Income Tax (Appeals). However, the learned
Commissioner of Income Tax (Appeals) on observing
that the appeal is delayed by more than 18 years, was
not convinced with the reason for delay and did not
condone the same and accordingly dismissed the
appeal. Subsequent thereto, the assessee preferred
appeal before the Tribunal but on the date of hearing
i.e. 15.12.2015 none appeared on behalf of the assessee
and, therefore, the appeal was dismissed for non-
prosecution. Thereafter, the assessee filed a M.A.
seeking opportunity to be heard and the same was
accepted by the Tribunal restoring the appeal to its
original number vide order dated 19.5.2017.
The learned counsel for the assessee referring to the
grounds of appeal submitted that the impugned
assessment order passed u/s 144 of the Act was not
served upon the assessee since the date of passing of
ITA 173/2015 Hemantkumar Pandey the order i.e. 22.3.1994. It was on 17.11.2002 that the
assessee was able to obtain a certified copy of the order.
It was contended that the delay arose because the
authorised representative at that point of time did not
inform the assessee about the impugned order due to
which the assessee failed to take legal recourse. He,
therefore, contended that the learned Commissioner of
Income Tax (Appeals) ought to have adjudicated the
appeal on merits after condoning the delay and,
therefore, one more opportunity to be provided to go
before the learned Commissioner of Income Tax
(Appeals) for necessary adjudication.
On the other hand, the learned DR submitted that the
learned Commissioner of Income Tax (Appeals) rightly
dismissed the appeal of the assessee as it was time
barred for more than 18 years and there was no
ITA 173/2015 Hemantkumar Pandey plausible reason given by the assessee for the said
delay.
We have heard both the parties and have perused the
record placed before us. We find that the assessment
was passed u/s 144 of the Act. The matter pertains to
the assessment year 1991-92. During the course of
hearing on earlier date i.e.6.12.2018 the assessee was
present in person and the learned DR brought all the
assessment record. The assessee reiterated the
submissions made by the learned counsel for the
assessee that he has not authorised any counsel to
receive the assessment order and he was never served
with the assessment order at his address. On the other
hand, the records available with the revenue
department reveals that one Mr. Agrawal, learned
counsel for the assessee, has given a letter submitting
that he has no such record with him and they were
ITA 173/2015 Hemantkumar Pandey called back by the assessee long before during the F.Y.
1991-92 and he has no further information to submit.
In these circumstances as well as the matter being
pertaining to the assessment year 1991-92, we find it
justified as well as in the interest of justice to condone
the delay on the part of the assessee in filing the appeal
before the learned Commissioner of Income Tax
(Appeals) and set aside the grounds of appeal relating
to addition of Rs.75,000/- to the file of the learned
Commissioner of Income Tax (Appeals) for necessary
adjudication. Needless to mention that proper
opportunity of being heard should be provided to the
assessee and simultaneously we also direct the
assessee to be compliant and do not seek any
adjournment unless otherwise required and cooperate
in the set aside proceedings.
ITA 173/2015 Hemantkumar Pandey 7. In the result, the appeal of the assessee is allowed for
statistical purposes.
Pronounced in open Court on 31May, 2018.
Sd/- sd/-
(KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER
31May, 2018 Dn/- Copy to – Appellant/Respodent/Pr.CIT/CIT(A)/DR/Guard File By order Private Secretary