SHRI HEMANT KUMAR PANDEY S/O. LT. SHYAM SUNDER PANDEY,KHANDWA vs. THE ACIT CIRCLE, KHANDWA

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.”

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.

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.

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.

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.

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