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Income Tax Appellate Tribunal, DELHI BENCH - ‘SMC’ NEW DELHI
Before: SHRI BHAVNESH SAINI
This appeal by assessee has been directed against the order of Ld. CIT(A) XX New Delhi dated 27.11.2014 for assessment. Year 1996- 97.
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.
Raj Kumar vs. ITO 4. The facts of the case are that assessment in this case was completed on total income of Rs. 40,39,670/- on 30th March, 1991. Ld.
CIT(A) confirmed the addition of Rs. 35,50,000/- on account of cash credit. The Tribunal vide order dated 22nd November, 2000 set aside the main issue of addition of Rs. 35,50,000/- on account of cash credits. The Assessing Officer issued statutory notices and in response thereto Shri Neeraj Karwall, CA attended proceeding before Assessing Officer and he was asked to file the details. Thereafter there was no compliance from the side of the assessee. The Assessing Officer issued several statutory notices to the assessee and even notice was served through affixture.
The assessee however did not appear. The Assessing Officer passed ex parte assessment order dated 27th March, 2002 and prepared a notice of demand u/s 56 of I.T. Act on 28th March, 2002. The income was computed at Rs. 39,80,780/-.
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
Raj Kumar vs. ITO filed on 18th June, 2012. There is no application filed for condonation of delay. The explanation of the assessee in this regard was sought. The assessee did not dispute that assessment order was sent through speed post on 28th March, 2002 at the correct addressee of the assessee. The assessee also did not dispute that as per section 27 of the General Clause Act there is a deemed service of assessment order upon the assessee. The assessee however explained that he had migrated to UK on 14th May 1998 and therefore he was not present in India. Therefore there is no service of assessment order upon him. The assessee was asked to produce copy of passport till date alongwith copy of the bank account maintained in India. The assessee produced the copy of the passport on 13th August, 2014, however no copy of the passport for the relevant period of year 1998 to 2005 was filed. The assessee thus failed to produce copy of the passport for the relevant period before Ld. CIT(A). The report from the Assessing Officer was also called for regarding service of the assessment order upon assessee. The Assessing Officer explained that assessment order was served upon assessee through speed post vide receipt dated 28th March, 2002 and the order was sent at the correct address of the assessee. It was also confirmed that speed post letter containing the assessment order did not receive unserved.
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
Raj Kumar vs. ITO was issued on 28th March, 2001 was duly attended by assessee but the order has also been received on behalf of the assessee. Therefore the claim that he has left India in 1998 and he was not represented by any authorized person was not proved. The assessee was not able to show that order for the relevant assessment year was not received by him. It was also observed that assessee had filed copy of GPA given to his brother Shri Kapil Dev residing at the same address of the assessee wherein he was authorized to do all the things and also to file appeals, application etc. Ld. CIT(A) therefore noted that the assessment order and demand notice sent by speed post on 28th March, 2002 have been served upon by the assessee at the correct address. The assessee did not file any application in condonation of delay. Therefore it was held the appeal is time barred by 10 years 1 month and 10 days. The appeal was therefore dismissed as not maintainable being time barred.
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).
Ld. CIT(A) was therefore justified in holding that appeal of assessee is time barred and is not maintainable. No interference is called for in the matter. The appeal of assessee is therefore dismissed.
In the result the appeal of assessee is dismissed.
Pronounced in the Open Court.