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Facts
The assessee-appellant filed two appeals challenging the assessment order and a penalty order for the assessment year 2010-11. Both appeals were dismissed by the Learned CIT(A) due to delay in filing and incorrect particulars in Form-35.
Held
The Tribunal held that the assessee's AR admitted to inadvertent mistakes in the dates of the assessment order, penalty order, and their service. The Tribunal allowed the assessee to file rectified Form-35 before the CIT(A) and remanded the matter for decision on condonation of delay.
Key Issues
Whether the appeals dismissed for delay and incorrect particulars in Form-35 should be remanded to the CIT(A) for fresh decision on condonation of delay after allowing rectification of Form-35.
Sections Cited
143(3), 153A, 245HA, 271(1)(c)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A”-Bench” JAIPUR
Before: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA. No. 816/JPR/2024
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A”-Bench” JAIPUR Jh jkBkSM+ deys'k t;UrHkkbZ] ys[kk lnL; ,o aJh ujsUnz dqekj] U;kf;d lnL; ds le{k BEFORE: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA. No. 816/JPR/2024 fu/kZkj.k o"kZ@Assessment Year : 2010-11 Sh. Raj Kumar Kandoi cuke Income Tax Officer Plot No. 21, 22A, Hanuman Vatika-2, Vs. Ward-4(2), Chitrakoot Marg, Ajmer Road, Jaipur. Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAZPK5709R vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assessee by : Shri S.L. Poddar, Adv. jktLo dh vksjls@Revenue by: Shri Anil Bhardwaj (CIT) vk;dj vihy la-@ fu/kZkj.k o"kZ@Assessment Year : 2010-11 Sh. Raj Kumar Kandoi cuke Income Tax Officer Vs. Plot No. 21, 22A, Hanuman Vatika-2, Ward-4(2), Chitrakoot Marg, Ajmer Road, Jaipur. Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAZPK5709R vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri S.L. Poddar, Adv. jktLo dh vksjls@Revenue by: Shri Anil Bhardwaj (CIT) lquokbZ dh rkjh[k@Date of Hearing :23/07/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 23/07/2024 vkns'k@ORDER PER: NARINDER KUMAR, JUDICIAL MEMBER 2 921/JPR/2024 Sh. Raj Kumar Kandoi vs. ITO On 24.05.2024, an appeal filed before Learned CIT(A), by the assessee-appellant, challenging assessment order dated 15.09.2017, passed by the Assessing Officer u/s 143(3) r.w.s. 153A and section 245HA of the Income Tax Act, 1961 (hereinafter referred to as the “Act”), and relating to assessment year 2010-11, came to be dismissed by Learned CIT(A), Jaipur-4. It came to be dismissed while observing that the appeal could not be admitted due to delay in its filing and also because of incorrect particulars given in appeal in Form-35.
On 25.06.2024, another appeal filed by the assessee-appellant before Learned CIT(A), challenging penalty order dated 15.03.2018 levying penalty under section 271(1)(c) of the Act, relating to the aforesaid assessment year came to be dismissed, for the same reasons. Hence, these two appeals by the assessee.
Since both the appeals are based on common ground and involve common issues, same have been argued together, and are being disposed of vide this common judgment.
Arguments heard. File perused.
Ld. AR for the assessee-appellant has submitted that even though as per case of the department copies of the assessment order and that of the penalty order, pertaining to assessment year 2010-11 are purported to 3 921/JPR/2024 Sh. Raj Kumar Kandoi vs. ITO have been delivered to the AR of the assessee on 15.09. 2017 and 15.03.2018 respectively, actually, none of the two orders was received by the AR of the assessee on that date. He has tried to explain that on that date, copies of other assessment orders relating to other assessment years were delivered to the AR of the assessee, but copies of the impugned assessment order and that of penalty order were not amongst the said copies. Ld. AR for the assessee has further submitted that all assessment orders pertaining to other assessment years were challenged by the assessee, but, no appeal could be filed against the impugned assessment order and the penalty order, due to the bonafide mistake. He has further submitted that the assessee was under the expression that no such assessment order or penalty order had been passed in respect of the assessment year 2010-11. The contention is that in the given circumstances. Learned CIT(A) should have entertained the appeals, while condoning the delay in filing thereof, but, the appeals have been dismissed being barred by limitation, and as such, the impugned orders be set aside and the matters may be remanded to CIT(A) for decision of the appeals on merit, after condoing the delay in filing of appeals before CIT(A).
4 921/JPR/2024 Sh. Raj Kumar Kandoi vs. ITO 6. On the other hand, Ld. DRs for the department in respective appeal have submitted that copies of the impugned assessment order and that of the penalty order were actually delivered to the AR of the assessee on 15.09.2017 and 15.3.2018, respectively, against her receipt, and as such, the appeals having been filed before Learned CIT(A) beyond prescribed period of limitation and that too without furnishing any sufficient cause, no fault can be found with the impugned orders, and as such present appeals deserve to be dismissed. However, at the same time, Ld. DRs i.e. for the department have submitted that in each Form No.35 submitted before CIT(A), wrong dates or particulars were furnished, they have no objection to the remand of the matters to Learned CIT(A) for disposal of the applications seeking condonation of delay afresh, provided that correct particulars are furnished in rectified Form No. 35 furnished in each appeal, and that too subject to costs for due delay which has occurred in this regard i.e. on account of furnishing of wrong particulars in Form No.35 of each appeal, and availing for fresh opportunity.
As noticed above, one of the grounds for dismissal of the appeal was that correct particulars were not furnished in Form-35.
5 921/JPR/2024 Sh. Raj Kumar Kandoi vs. ITO As is available from copy of Form No. 35 in appeal pertaining to assessment order, the date of assessment order was furnished therein as on 29.04.2019, as against 15.09.2017 i.e. actual date of passing of the assessment order, and the date of service of the said order was also mentioned as 29.04.2019 against the actual date of service of the order i.e. on 15.09.2017. As regards the second appeal, as per copy of Form -35 in appeal pertaining to penalty order, the date of order was furnished therein as on 18.03.2019 as against 15.03.2018 i.e. actual date of passing of the penalty order, and the date of service of the said order was also mentioned as 18.03.2019 against the actual date of service of the order i.e. 15.03.2018.
In the course of arguments, Ld. AR for the assessee-appellant has candidly admitted the errors as regards the date(s) of the assessment order and penalty order, and the dates of service of the said orders on the AR of the assessee, and submitted that mistakes being inadvertent mistakes, rectified form(s) No.35 depicting correct dates be allowed to be filed before CIT(A), while remanding the matters.
In view of the candid admission by the Ld. AR for the assessee- appellant regarding mistake in putting forth date(s) of passing of and service of copies, of the orders by the Assessing Officer, we deem it a fit 6 ITA No. 816& 921/JPR/2024 Sh. Raj Kumar Kandoi vs. ITO case to allow the assessee to present rectified Forms-35 before Learned CIT(A), giving correct particulars i.e. date(s) referred to above. We order accordingly.
As regards delay in filing of the appeal before Learned CIT(A), one of the submissions put forth by the Ld. AR for the assessee-appellant at the Bar is that other assessment orders relating to other assessment years, qua the assessee-appellant, were timely challenged before Learned CIT(A), but, inadvertently, no appeal could be filed within the prescribed period of limitation, and as such delay in filing of the appeals be condoned.
As per papers submitted on behalf of the department, an application dt. 9.5.2024 is purported to have been submitted by the AR of the appellant before Ld. CIT(A). Its perusal would reveal that no such plea was raised on behalf of the appellant in said application submitted before Ld. CIT(A). So, the plea that no copy of the impugned assessment order and penalty order was there in the lot, has been put forth before us for the first time. Copies of Note sheets prepared by the department, and pertaining to assessment years 2007-08 to 2013-14 would reveal that the same bear signatures of Ms. Kushbu Jain, AR of the assessee. Ld. AR representing the appellant before us admits this fact.