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Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI
Before: SHRI R. K. PANDA
PER R. K. PANDA, AM : This appeal filed by the assessee is directed against the order dated 03.03.2014 of CIT(A)- XXIV, New Delhi relating to assessment year 2007-08.
This appeal was earlier dismissed by the Tribunal vide order dated 13.06.2016 for non-prosecution. Subsequently, the Tribunal vide MA No.278/Del/2016 order dated 22.09.2017 recalled its earlier order. Hence, this is a recalled matter.
The assessee has raised the following grounds of appeal :- “1. That the action of the Hon’ble Commissioner of Income Tax (Appeals)- XXIV, New Delhi by not condoning the delay in filing the appeal, is unjust, arbitrary and against the natural law and justice.
2. That the action of the Hon’ble Commissioner of Income Tax (Appeals)-XXIV, New Delhi by confirming the action of Assessing Officer who passed his order under Section 144 of the Income Tax Act, 1961 without service of any notice to the appellant and the addition of the amount of a unsecured loan at Rs.7.00 Lac is unjust, arbitrary and against the natural law and justice. 3. That the appellant craves leave to add/delete/modify the grounds of appeal.”
Facts of the case, in brief, are that the assessee is an individual and filed his return of income on 31.10.2007 declaring total income of Rs.8,56,010/-.
Since the assessee did not attend the assessment proceedings despite service of notice u/s 143(2) through affixture, the Assessing Officer completed the assessment u/s 144 on a total income of Rs.15,56,010/-.
Before the ld. CIT(A), the assessee filed an appeal. However, the same was dismissed by the ld. CIT(A) on the ground that the assessee had filed the appeal after a period of four years and the assessee has not given any satisfactory explanation regarding such delay in filing of the appeal. He, therefore, did not admit the appeal on the ground that the same has been filed beyond the limitation period without any reasonable cause and, therefore, the delay cannot be condoned.
Aggrieved with such order of the ld. CIT(A), the assessee is in appeal before the Tribunal.
Ld. counsel for the assessee strongly challenged the order of the ld. CIT(A). He submitted that the assessee had filed an affidavit explaining the reasons as to why there was delay in filing of the appeal. He submitted that it was explained before the ld. CIT(A) that the assessee was under a bona-fide belief that the return filed has been accepted by the Income Tax Department.
No notice for recovery was also received by the assessee. Only when the assessee received a call from the concerned Assessing Officer/Staff for collecting the assessment order, the assessee collected the same personally on 28.01.2013. The assessee also requested the ld. CIT(A) to verify the assessment records. However, the ld. CIT(A) without verifying the assessment records, rejected the explanation of the assessee and held that the appeal has been filed beyond the limitation period without any reasonable cause. He accordingly submitted that the delay in filing of the appeal be condoned and the addition made by the Assessing Officer and sustained by the ld. CIT(A) should be deleted.
Ld. DR on the other hand heavily relied on the order of the ld. CIT(A).
She submitted that the assessee did not participate in the assessment proceedings nor filed the appeal before the ld. CIT(A) in time. Further, the address given by the assessee in Form No.35 is the same address for correspondence, which is also the same address in the return filed before the Assessing Officer. Therefore, the conduct of the assessee shows that there was no reasonable cause for condoning such delay. She accordingly submitted that the order of the ld CIT(A) be upheld and the grounds raised by the assessee should be dismissed.
I have considered the rival arguments made by both the sides and perused the orders of the authorities below. A perusal of the assessment order shows that the Assessing Officer completed the assessment u/s 144 on the ground that the notice u/s 143(2) dated 15.09.2008 issued and sent through Speed Post was returned by the Postal Authorities with the remark ‘no such person’. Thereafter, the same was served to the assessee through affixture and since there was no compliance to such notice twice, the Assessing Officer completed the assessment u/s 144 of the I.T. Act. I find although the assessee had explained before the ld. CIT(A) regarding the reasons for such delay in filing of the appeal by filing an affidavit and requested him to verify the assessment records. I find ld. CIT(A) has not verified the assessment records. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the ld. CIT(A) with the direction to verify the assessment records and sympathetically re-consider as to whether there was a reasonable cause on the part of the assessee for explaining such delay especially when the notice/assessment orders were served through affixture. The ld. CIT(A) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. I hold and direct accordingly.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court at the time of hearing itself i.e. on this 20th day of November, 2017.