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Income Tax Appellate Tribunal, ‘ D’ BENCH : CHENNAI
Before: SHRI GEORGE MATHAN & SHRI A.MOHAN ALANKAMONY
आदेश / O R D E R
PER GEORGE MATHAN, JUDICIAL MEMBER
This is an appeal filed by the assessee against the order of the Commissioner of Income-tax (Appeals)-5, Chennai in appeal No.395/CIT(A)-5/2013-14 dated 20.09.2017 for the assessment year 2007-08 against confirming the levy of penalty u/s. 271(1)(c) of the Act.
Mr.K.Meenakshi Sundaram represented on behalf of the Assessee, and Mrs.S.Vijayaprabha represented on behalf of the Revenue.
It was submitted by ld.A.R that the assessment order in the assessee’s case was completed on 30.12.2009 and the penalty order u/s. 271(1)(c) of the Act came to be passed on 29.08.2011. It was a submission that the penalty order u/s. 271(1)(c) of the Act dated 29.08.2011 had not been received by the assessee. Consequently, the assessee had obtained the true copy of the said order on 03.09.2013 and the appeal was filed on 07.10.2013 with a delay of four days for which the assessee had filed necessary petition for condonation of delay. It was a submission that ld.CIT(A) held that belatedly filing of the appeal by 735 days was not condoned and consequently, dismissed the assessee’s appeal in liminie on account of limitation.
Ld.A.R drew our attention to para 5.3 of the CIT(A)’s order to submit that there is no evidence of service of the Order of penalty on the assessee as has been mentioned. It was a prayer that the delay in filing of the appeal before the Ld.CIT(A) may be condoned and the appeal may be restored to the file of Ld.CIT(A) for adjudication on merits.
In reply, ld.D.R vehemently opposed the submission of ld.A.R. It was a submission that the delay in filing of the appeal was 735 days, which was not explained by the assessee. It was a submission that the order of the CIT(Appeals) is liable to be confirmed.
We have considered the rival submissions. A perusal of the order of the CIT(Appeals) shows that in para 5.1 of CIT(A)’s order, he has extracted submissions of the assessee that the order of levying penalty had not been served on the assessee and that the same was received only on 03.09.2013. Perusal of para 5.3 of CIT(A)’s order shows that in the Remand Report, the ld. Assessing Officer has specifically mentioned that the Dispatch Register is not traceable.
However, the dispatch date to the assessee’s address is noted as 30.08.2011 on account of the dispatcher’s signature on the last page of Penalty order. Admittedly, the dispatch register being not obtainable, more so not traceable, there is no evidence to show the service of the penalty order on the assessee. In any case, the assessee would not have gained any benefit by not appealing against the penalty order had it been served on the assessee. This being so, we are of the view that the delay in filing of the appeal by the assessee before the Ld.CIT(A) has been explained and the delay is liable to be condoned and we do so. In these circumstances, the delay in filing of the appeal before the Ld.CIT(A) is condoned and the issues in the appeal are restored to the file of Ld.CIT(A) for adjudication on merits.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court after conclusion of hearing on 10th September, 2018, at Chennai.