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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 02ND DAY OF JULY 2018
PRESENT
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
AND
THE HON’BLE Mrs.JUSTICE S.SUJATHA
I.T.A.No.197/2017
BETWEEN:
MOLEX INDIA TOOLING PVT. LTD., [now known as Molex (India) Pvt. Ltd.] PLOT NO.6(A), SADAR MANGALA INDUSTRIAL AREA KADUGODI, BANGALORE-560 067 REPRESENTED BY ITS DIRECTOR SRI.GIRISH KUMAR C PAN: NO.AAACM 6091N.
…APPELLANT (BY Mr. D.R. RAVISHANKAR, ADV.)
AND:
COMMISSIONER OF INCOME-TAX APPEALS-IV, NO.14/3A RASHTROTHANA BHAVAN NRUPATHUNGA ROAD BANGALORE-560 001.
THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE 12(1), NO. 14/3, RASHTROTHANA BHAVAN NRUPATHUNGA ROAD, BANGALORE-560 001.
…RESPONDENTS (BY Mr. JEEVAN J. NEERALGI, ADV.)
Date of Judgment 02-07-2018 I.T.A.No.197/2017 Molex India Tooling Pvt. Ltd., Vs. Commissioner of Income-Tax & Anr.
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THIS I.T.A IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW AS STATED ABOVE. SET ASIDE THE ORDER OF THE TRIBUNAL IN I.T.(TP)A NO.839/BANG/2009 DATED DECEMBER 23, 2016; ANNEXURE “A”. DIRECT THE TRIBUNAL TO HEAR THE APPEAL BEARING NO. IT(TP)A NO. 839/BANG/2009 ON MERITS & ETC.
THIS I.T.A. COMING ON FOR ADMISSION, THIS DAY Dr. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-
JUDGMENT
Mr.D.R.Ravishankar, Adv. for Appellant - Assessee Mr.Jeevan J.Neeralgi, Adv. for Respondents – Revenue
The Appellant-Assessee has filed this appeal against the order dated 23.12.2016 of the learned ITAT, ‘A’ Bench, Bangalore, dismissing IT(TP)A No.839/Bang/2009 (Moles India Pvt. Ltd., vs. The Asst.Commissioner of Income Tax) for A.Y.2003-04.
The learned Tribunal dismissed the appeal on the ground of delay itself without deciding the merits of the case. The reasons given by the learned Tribunal in the impugned order are quoted below for ready reference:-
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“7. Though the assessee has taken a plea that it did not find the order in its record and only came to know when the Office of the AO contacted it with regard to giving effect to the order of CIT(A), but in the application for condonation of delay, the assessee has not specifically contended that order of the CIT(A) was not served upon it. The assessee simply stated that it did not find the order in its record. Non-availability of the order of CIT(A) in its record does not mean that the order of CIT(A) was not communicated to him. Whereas, in the order of CIT(A), it has been categorically mentioned by the Office of the CIT(A) that certified copy of the order was dispatched on 12.08.2003 vide Docket No.EK3074467591IN.
We do not wish to miss one important fact that this appeal was filed on 18.08.2009. Though assessee knew it very well that the appeal was late and he is required to file application for condonation of delay along with the appeal, but it did not file any application for condonation of delay. This application was filed on 18.11.2012 after a number of hearings having taken place before the Tribunal. It shows that the assessee is not vigilant towards its right and interest. Since it has not been
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established by the assessee that the order of the CIT (A) was not served upon him, it has to be presumed in the light of the noting of the Office of the CIT(A) that order of CIT(A) was duly served upon him in the month of August, 2008, when it was dispatched on 12.08.2008. Thus, the onus is upon the assessee to explain the delay in filing or appeal from August, 2008, but we do not find any plausible explanation in the application for condonation of delay in filing the appeal”.
Learned counsel for the appellant-assessee Mr.D.R.Ravishankar has urged before the Court that there is no finding of the learned Tribunal that Docket No.EK3074467591IN dispatched on 12.08.2008 has ever delivered to the assessee, but only a presumption of service has been drawn though wrongly, a negative burden has been cast upon the assessee to establish that order was not served upon him, whereas the assessee came to know of the impugned order passed by the learned CIT(A) only when the lower Assessing Authority sought to give appeal effect to the order of the
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CIT(A) after one year of the same, which was purportedly in the year 2009. Since the assessee was not served with the impugned order of CIT(A), he immediately applied for the certified copy of the order of the CIT(A) and the same was supplied to him only on 10.07.2009 as would appear in the endorsement for issuing certified copy of the order of CIT(A) vide Annexure-B produced before us.
He therefore submitted that within the limitation period of 60 days from the date of obtaining of such certified copy, the assessee had filed the present appeal before the learned Tribunal. However, the learned Tribunal rejected the said appeal only on the ground of delay.
Learned counsel for the appellant-assessee also submitted before us that after one year of the dispatch of the order of CIT(A) on 12.08.2008, when the assessee was sought to enquire with the Postal
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Authorities about that Track Number, they expressed their inability to give any Certificate due to non- availability of the old records. Therefore, the assessee also could not produce any proof by Postal Authorities of non-delivery or status of delivery of the specified article to the assessee containing the said order of the CIT(A), which was sought to be challenged before the learned Tribunal.
Learned counsel for the Respondents-Revenue Mr.Jeevan J.Neeralgi however supported the impugned order.
Having heard the learned counsels, we are of the opinion that without the proof of the service of the impugned order of CIT (A) being placed on record before the learned Tribunal or the learned Tribunal having any other material to draw an inference of the actual service of the impugned order on the assessee, the learned Tribunal ought not to have dismissed the said appeal on
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the ground of delay. The Tribunal was not justified in placing negative burden on the assessee to establish the ‘non-service’ of the order. It was for the Revenue to establish the service of the order on the assessee.
We are therefore inclined to set aside the impugned order of the learned Tribunal and remit the case back to the learned Tribunal for deciding the appeal on merits in accordance with law.
Ordered accordingly. No costs.
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JUDGE
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