M/S K.K. APPARELS,LUDHIANA vs. ACIT, SOLAN

आदेश/Order

Per Sanjay Garg, Judicial Member:

The present appeal has been preferred by the assessee against the order dated 18.09.2008 of the Commissioner of Income Tax (Appeals), Shimla [hereinafter referred to as’ CIT(A)’ ].

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 2 affording a proper opportunity of hearing which is against the Principals of Natural Justice and as such the order passed is illegal, arbitrary, unjustified which merits annulment.

days. A separate application for Condonation of Delay has been filed,

wherein, it has been pleaded that the order was passed by the Ld.

CIT(A) on 18.9.2008. That the assessee firm was closed in April, 2007

and no business was conducted after April 2007. That after the closure

of the business in April 2007, Bank of India, Chandigarh took the

possession and sold the machinery of the firm to cover its outstanding

dues. That the assessee had never received any copy of the impugned

order of the CIT(A). That it was only that the assessee firm received the

demand notice issued by the DCIT Circle, Parwanoo dated 24.1.2017

and that the assessee firm came to know about the passing of the

impugned order of the CIT(A). Thereafter, the assessee immediately

made request to the office of the CIT(A), Shimla at Solan vide letter

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 3 dated 24.2.2017 for issue of copy of the appeal order for assessment

year 2005-06, which was received on 24.4.2017. The assessee thereafter

immediately filed the present appeal before this Tribunal. That the

delay, if any, in filing present appeal is not on account of any

intentional negligence or willful default on the part of the assessee.

Reiterating the above submissions, the Ld. Counsel for the

assessee has submitted that the delay in filing the present appeal before

this Tribunal may be condoned.

of the record, it is revealed that the copy of the impugned order of the

CIT(A) dated 18.9.2008 was dispatched to the assessee by registered

post on 30.09.2018 at the address “KK Apparels, Village Chowkiwala,

Nalagarh, Distt Solan (HP)”. That further as informed by the Ld.

CIT(A) Shimla, the order was never returned back to their office

undelivered. That even the assessee had sought an adjournment through

application and also a telegram received in the office of the CIT(A) on

16.09.2008, however, the Ld. CIT(A) rejected the said application for

adjournment and an intimation this respect was not sent to the assessee

vide letter dated 18.9.2008. That, thereafter, the assessee never enquired

about the status of its appeal for the assessment year under

consideration despite the fact that the appeals of the assessee for

assessment years 2002-03, 2003-04 and 2004-05 were pending before

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 4 the ITAT and as such the assessee was reasonably supposed to make

enquiries from the office of the CIT(A), Shimla regarding the status of

its appeal case for the assessment year under consideration.

The Ld. DR, therefore, has vehemently opposed the application of

the assessee for Condonation of Delay.

attention to the letter dated 29.3.2017 from the office of the CIT(A)

Shimla, wherein, it has been mentioned that the impugned order dated

18.09.2008 was sent to the assessee at the following address:-

“KK Apparels, Village Chowkiwala, Nalagarh, Distt Solan (HP)”.

The Ld. Counsel has further invited our attention to Form No. 35, which

is the opening form of the appeal, wherein, in the column meant for

‘address to which notice may be sent to the appellant’, the address of

the assessee has been mentioned as under:-

“M/s K.K. Apparels, Vill: Chowkiwala, Nalagarh, C/o 68, Sarabha Nagar, Ludhiana.”

The Ld. Counsel, therefore, has submitted that the impugned order was

never sent at the address mentioned in form No. 35. Further, that the

impugned order was allegedly sent at the factory premise which was

already closed down and possession was taken over by the bank.

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 5

has been that despite the fact that that though the order might have been

sent at the factory premises of the assessee, however, there was a

negligence on the part of the assessee as it did not enquire about the

fate of its appeal for the assessment year under consideration especially

when the appeals of the assessee for other assessment years were

pending before the Tribunal. That under the circumstances, there was no

justification for condoning the long delay of 8 years and 228 days in

filing the present appeal. However, considering the entire facts and

circumstances, we are convinced with the submissions of the Ld.

Counsel for the assessee that the order was not sent by the office of the

CIT(A) at the correct address of the assessee. Further that since the

assessee firm had already closed down and the assets taken were over

by the bank and the staff already retrenched, there was no proper

person to look after the affairs of the assessee firm. Further it has also

been submitted that the advocate who was looking after the matter

namely Shri S.S. Rikhi had already expired and the firm had no

information of the status of the appeal after his death. Hence,

considering the above factual aspect and also considering the interest of

justice, we deem it fit to condone the long delay in filing the present

appeal. We order accordingly.

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 6 7. Now coming to the merits of the case. The Ld. Counsel for the

assessee, at the outset, has invited our attention to the impugned order

of the CIT(A) to submit that the same is an ex-parte order. As stated

above, the Ld. counsel for the assessee had moved an application for

adjournment of the case for the said date which was also followed by a

telegram, however, the Ld. CIT(A) rejected the application and passed

the impugned order on the same date. In our view, the assessee has not

been given a reasonable opportunity to present its case before the

CIT(A).

the matter is restored to the file of the CIT(A) for decision afresh in

accordance with law. Needless to say that the Ld. CIT(A) will give

proper opportunity to the assessee to present its case. At the same time,

we direct the assessee to promptly appear before the Ld. CIT(A), as and

when called for, and not to seek unnecessary adjournments.

With the above observations, the appeal of the assessee is treated

as allowed for statistical purposes.

Order pronounced in the Open Court on 20.08.2019.

Sd/- Sd/- (संजय गग� / SANJAY GARG) (एन. के. सैनी / N.K. SAINI) उपा�य� /Vice President �या�यकसद�य/ Judicial Member Dated : 20.08. 2019 “आर.के.”

ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 7 आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar