BRICKS N STONES BUILDERS,HYDERABAD vs. INCOME TAX OFFICER, WARD-4(3), HYDERABAD

The appeals in ITA Nos.2025 and 2027/Hyd/2017 are the appeals against the assessments completed u/s 143(3) of the Act, while the appeal in ITA No.1026/Hyd/2017 is against the order u/s 271B of the Act. The common and only reason given by the assessee for filing of the appeals before the CIT (A) with a delay of nearly two years and more is that the relevant assessment orders were not received by them and that they came to know about the proceedings only when they appeared before the Dy. CIT for the A.Y 2013-14 and were informed that there are some arrears for the A.Ys 2011-12 and 2012-13 and that immediately thereafter, they applied for certified copies and after receiving the certified copies of the orders they have filed the appeals without any further delay. The CIT (A) has observed that the orders were duly served on the assessee as is evident from the acknowledgement slips and that there was no application of the assessee for certified copies nor was there any acknowledgement of the assessee to indicate that the certified copies were given by his office. Therefore, the CIT (A) refused to condone the delay and dismissed the appeals and the assessee is in appeal before us by raising the following grounds of appeal which are common in all the three appeals: “1. The learned First Appellate Authority is not justified in not appreciating the reasons for delay in filing the appeal. 2. The learned First Appellate Authority is not justified in dismissing the appeal on the ground that the appeal was not filed electronically. 3. The learned First Appellate Authority is not justified in not deciding the issue on merits”. 3. The learned Counsel for the assessee reiterated the submissions made before the authorities below, while the learned DR, on the other hand, produced the records to show that the assessment order u/s 143(3) for the A.Y 2011-12 has been served on the assessee’s Counsel Mr. Ramana whereas the assessment order for the A.Y 2012-13 has been sent by speed post in the name of the assessee itself. Copies of the acknowledgement slips have also been filed before us. In rebuttal, the learned Counsel for the assessee stated that he has instructions from his clients that they have not received the assessment orders u/s 143(1) but have only received the notices for the assessments u/s on the 153C of the Act, in response to which, the assessee has appeared and participated in the proceedings. He further submitted that the issue involved in these appeals are with regard to the estimation of income only and therefore, the assessee would suffer irreparable loss, if the assessee is not given an opportunity to present its case. He therefore, prayed that the delay may be condoned and the issue may be remanded to the file of the CIT (A) for his decision on merits.

Having regard to the rival contentions and the material on record, we find that the assessment order u/s 143(3) for the A.Y 2011-12 has been served on the Counsel for the assessee, while the assessment order for the A.Y 2012-13 has been sent by speed post to the Assessee’s address. While the contention of the assessee that it has not been served with the assessment order for the A.Y 2011-12 can be accepted to a certain extent, because the Counsel may not have intimated the same to the assessee. For the A.Y 2012-13, the assessment order has been sent by speed post and therefore, it is presumed to have been served on the assessee, but as seen from the assessment orders filed before us in the appeal papers, we find that they are the certified copies issued by the AO. Therefore, it is clear that the assessee is presumed to have received the assessment orders. Be that as it may, when the assessment of the assessee has been completed by estimating the income, the assessee would not have benefited in any way, by not filing the appeal before the CIT (A). Hence the Hon'ble Supreme Court in the case of Collector vs. MST Khatiji & Others reported in 167 ITR 471 (S.C) has clearly held that where there is a prima facie case in favour of the petitioner and the petitioner is not likely to benefit from the delay, the delay should be condoned. Respectfully following the same, we are inclined to condone the delay in filing of the appeals before the CIT (A) and remand the issue to the file of the CIT (A) for decision on merits in all the three appeals. 5. In the result, appeals are treated as allowed for statistical purposes. Order pronounced in the Open Court on 25th May, 2018.