SH. RAJ KUMAR THROUGH SH. KAPIL DEV,DELHI vs. ITO, NEW DELHI

I have heard Ld. Representative of the parties and perused the authorities below.

Ld. CIT(A) dismissed the appeal of assessee holding that appeal of assessee was time barred by 10 years 1 month and 18 days.

The assessee filed the appeal before Ld. CIT(A) on 18th June, 2012. Ld. CIT(A) noted for the record that alongwith a copy of demand notice, there is a copy of speed post receipt of department of post showing that the order has been dispatched through speed post No. ED 200565731 IN dated 28th March, 2002. Thus there is a contradiction in the date of service as per claim of assessee and as apparent from the demand notice / speed post receipt. Ld. CIT(A) after perusal of the record noted that the assessment order has been sent to assessee on 28th March, 2002 through speed post but assessee claimed that appeal

Ld. CIT(A) considering the material on record noted that there is a gross contradiction in the claim of the assessee as not only the assessment proceedings for assessment year 1998-99 wherein the order

Ld. Counsel for assessee reiterated the submissions made before authorities below and submitted that Shri Neeraj Karwall, CA attended the proceedings before Assessing Officer who was an associate of Shri Nityanand Trehan CA who had expired on 8th May, 2011 and the association of CAs broke off. The assessee was not aware of any proceedings therefore assessee was not aware of the service of assessment order. On the other hand Ld. DR relied upon the impugned order.

I have considered rival submissions. It is not in dispute that the assessee’s counsel Shri Neeraj Karwall, CA attended the assessment proceedings before Assessing Officer and he was asked to file the complete details. The appearance of Ld. Counsel for assessee before Assessing Officer prove that assessee was aware of the assessment proceedings pending because the counsel appeared before the Assessing Officer at assessment stage on behalf of the assessee . The assessee did not dispute that he has engaged Shri Neeraj Karwall., CA to appear before Assessing Officer at the assessment proceedings. There are limitation provided to pass the assessment order in set aside proceedings within limited period. Therefore the assessee should have verify the fact from his counsel about the fate of the assessment order passed on 27th March, 2002. The assessee however explained before Ld. CIT(A) that he had migrated to UK on 14th May, 1998 and therefore he was not physically present during the relevant period. The assessee however did not produce the copies of the passport before Ld. CIT(A)for the period 1998 to 2005. Thus the plea taken by assessee that he was away from India during the relevant period was not proved through any evidence or material on record. The assessee did not dispute passing an ex parte order on 28th March, 2002 and sending a copy of the same through speed post at the correct address of the assessee. There is no denial of assessee through any evidence that the assessment order was not served upon him in the year 2002. The assessee also produced copy of the GPA executed in favour of his brother who was residing at the same address of the assessee whereby he was authorized to file appeals, application etc. The Assessing Officer also confirmed in his report to the Ld. CIT(A) that the assessment order sent through speed post cover was not received back unserved by the Income Tax Department. These facts therefore clearly prove that the assessment order was validly served upon to the assessee through speed post in the year 2002. Thus the appeal was clearly time barred by 10 years 1 month and 18 days. The assessee did not file any application for condonation of delay and no sufficient material was produced before Ld. CIT(A) to explain delay in filing the appeal to the satisfaction of the Ld. CIT(A).