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Income Tax Appellate Tribunal, AGRA (SMC
Before: SHRI A. D. JAIN
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH: AGRA
BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER
I.T.A No. 145/Agra/2016 (ASSESSMENT YEAR-2009-10)
Krishak Sahakari Shakkar ACIT,-Circle-3, Karkhana, Village Narayan Pura, Gwalior. Tehsil, Raghogarh, Guna. (M.P.) PAN No.AAAJK0553G (Assessee) (Revenue)
Assessee by Shri Deependra Mohan, AR Revenue by Shri Waseem Arshad, Sr.DR.
Date of Hearing 08.01.2018 Date of Pronouncement 16.01.2018
ORDER This is assessee’s appeal for assessment year 2009-10, taking the following grounds: “1. That, on the facts and circumstances of the case and in law, and in any view of the matter, the penalty of Rs. 5,54,249/- levied u/s 271(1)(c) of the Income Tax Act, 1961 is not justified. 2. That, on the facts and circumstances of the case and in law, and in any view of the matter, the Ld. Commissioner of Income Tax (Appeals) has erred in dismissing the appeal as non maintainable because there was delay in
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filing the appeal and the appellant has not filed any application for condonation of delay. 3. That, on the facts and circumstances of the case and in law, and in any view of the matter, the Ld. Commissioner of Income Tax (Appeals) has erred in not deciding the appeal on merits. 4. That, on the facts and circumstances of the case and in law, and in any view of the matter, the Ld. Commissioner of Income Tax (Appeals) has erred in not allowing a reasonable and proper opportunity of hearing prior to dismissing the appeal.” 2. As per Ground No. 2, the ld. CIT(A) has erred in dismissing the appeal as not maintainable since there was a delay in filing the appeal and the assessee had not filed any application for condonation of delay. 3. In this regard, the ld. CIT(A), in the impugned order, has observed as follows: “The appellant appealed on 13.08.2012 against the order dated 26.08.2012 passed u/s 271 (1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act) by the ACIT, Circle-3, Gwalior (hereinafter referred to as the AO) for assessment year 2009-10. The appeal has been filed within the prescribed time limit. In response to the notice issued by this office, Sh. Ashok Vijaywargiya, CA attended on behalf of the appellant as his authorized representative (hereinafter referred to as the Ld. AR) and filed written submission and also made oral arguments. However, it is observed In this case that this appeal has not been filed by the appellant within the prescribed time
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limit. From a perusal of Form No. 35 submitted by the appellant while preferring this appeal, it is found that the appellant itself has shown the service of the AO's order as on 31.03.2013. Therefore, there is a delay of about 1 month and 17 days in preferring this appeal by the appellant. Thus the appeal is out of the limitation period by 47 days. The appellant in the Form 35 has neither informed nor it has filed any condonation application or any affidavit for the delay caused in filing the appeal. Normally, in case of delayed filing of appeal, the appeal is accompanied by an application giving therein the reasons of delay with request for condonation for the same.
The-various courts have also held that in case the appellant is not able to show that there existed sufficient cause for the delay in filing of appeal beyond the limitation period, the appeal is not maintainable and liable to be rejected. The following judgments have upheld the above contention:
i) Vinod Kumar (1982) 2 ITD 606 (Delhi)
ii) A.N. Mafatlal (Huf) [1982] 2 ITD 631 (Bom.)
iii) Sandeep Narang And Vice Versa [1982] ITD 36 (Pat.)
iv) Charki Mica Mining Co. Ltd. [1978] 111 ITR 183 (Cat.)]
v) Municipal Board 1951] 19 ITR 63 (All.)
vi) K. Prabhakar Rao [2011) 128 ITD 263 (Bang.)
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In view of the above facts and circumstances, the appeal of the appellant is barred by limitation and not maintainable as per the provisions of section 249(2) r.w.s. 249(3) of IT Act, 1961 and is being dismissed as non-maintainable. 4. In the result, this appeal is dismissed as non-maintainable.”
Thus, the ld. CIT(A) observed that the appeal filed before him was delayed by 47 days and no application for condonation of delay had been filed by the assessee. In this regard, an affidavit dated 04.10.2017, sworn by the erstwhile counsel for the assessee has been filed before this Bench, alongwith the Annexures mentioned therein. The contents thereof are as follows: “I, CA. Ashok Vijaywargiya, authorized representative of Krishak Sahakari Shakkar , Narayanpura, Raghogarh, Guna, do hereby solemnly affirm as under:-
That, I was appointed as authorized representative of Krishak Sahakari Shakkar Karkhana, Narayanpura to represent the ITA No. 207/CIT(A)/Gwl/2011-12 for assessment year 2009-10 before the Commissioner of Income (Appeals) - Agra.
That the said appeal was filed on 13.08.2012 aggrieved by the penalty order dated 28.06.2012 u/s 271(1)(c) of the Act, which was reached to the assessee on 07.08.2012. But, the date of service was mentioned in the Form 35 as 28.06.2012.
That, accordingly, the delay in filing the appeal was noted.
That, considering the delay in filing the appeal, an application dated 20.01.2016 for condonation of delay in filing the appeal
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was submitted on 20.01.2016 at the time of hearing along with the written submission dated 20.01.2016 before the Commissioner of Income Tax (Appeals) - Agra, Camp at Gwalior (M. P.). The matter of delay was also discussed during course of hearing.
Cop)' of application dated 20.01.2016 for condonation of delay in filing the appeal submitted before the Commissioner of Income Tax (Appeals) - Agra is enclosed herewith and marked as, ANNEX. P-l-4
That, the same application for delay condonation was misplaced, and I was informed on telephone about this fact, in the last week of April 2016 by the office of the Commissioner of Income Tax (Appeals) - Agra and instructed me to send the copy of that application once again.
That, I had sent the application immediately again on 28.04.2016 by speed post, which was delivered in the office of the Commissioner of Income Tax (Appeals), Agra on 29.04.2016.
Copy of track report of Speed Post is enclosed herewith and marked as ANNEX. P-5
That, thereafter, the Commissioner of Income Tax (Appeals), Agra dispatched the appeal order from Agra on 06.05.2016 to the assessee dismissing the appeal as not maintainable without deciding on merit mentioning that there was a delay in filing the appeal and application for condonation of delay not filed.
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Copy of Track report of Speed Post is enclosed herewith and marked as ANNEX. P-6
That, since, I had filed an application for condonation of delay in filing the appeal, and the Commissioner of Income Tax (Appeals) has not mentioned it in the order, hence, I am confirming this fact in this affidavit.”
A perusal of the affidavit and the Annexures appended thereto shows the contention of the assessee to be that the assessee received the penalty order on 07.08.2012, through Speed Post No.EI30650 Sl. No. 242, Letter Receipt/Inverb Registry, Annexure P-4 to the Affidavit. In the Form No. 35, however, the date of service of the penalty order on the assessee was, inadvertently wrongly mentioned as 28.06.2012. This date was, in fact, the date of dispatch of the penalty order by the AO, vide No. 419, as also mentioned on the first page of the penalty order itself. As per the ld. Counsel for the assessee, the due date for filing the appeal, as such, was 06.09.2012 and the appeal was, well in time, filed on 13.08.2012. Still, the application (Annexure-1) dated 20.01.2016, for condonation of delay, was filed with the ld. CIT(A) at the time of hearing on 20.01.2016, alongwith written submissions and the matter of condonation of delay was also discussed. The Office of the ld. CIT(A ) informed the assessee on phone in the last week of April, 2016, that the said application for condonation of delay had got misplaced and the assessee was asked to send a copy thereof to the CIT(A)’s Office. This was done by the assessee on 28.04.2016 by Speed Post and the copy of the application was
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delivered in the Office of the ld. CIT(A) on 29.04.2016, as per the Track Report
(Annexure-5) of Speed Post.
Since the above facts, as sworn on affidavit by the erstwhile counsel for the
assessee, do not find mention in the impugned order, in the interest of justice, the
matter is remitted to the file of the ld. CIT(A) to decide it afresh on ascertaining the
veracity thereof from his record on affording due and adequate opportunity of
hearing to the assessee. The assessee, no doubt, shall co-operate in the fresh
proceedings before the ld. CIT(A). All pleas available to the assessee under the law
shall remain so available to it. The ld. CIT(A) will decide the merits of the case
also. Ordered accordingly.
In the result, for statistical purposes, the appeal is treated as allowed.
Order pronounced in the open court on 16/01/2018.
Sd/- (A.D. JAIN) JUDICIAL MEMBER Dated 16/01/2018 *AKV* Copy forwarded to: 1. Assessee 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR