RAKESH VERMA,KOLKATA vs. I.T.O., WARD-38(3), KOLKATA, KOLKATA
What did the Tribunal hold?
The Tribunal found that while the CIT(A) had noted issues with the delay condonation, in the interest of justice, the case should be remanded. The assessee was out of station due to financial crises, and notices were served by affixation. The Tribunal directed the CIT(A) to re-adjudicate the appeal after affording an opportunity to the assessee and requiring them to produce evidence.
What were the facts?
The assessee's appeal before the CIT(A) was dismissed due to a delay of 82 days. The CIT(A) found the reasons for the delay unsatisfactory and noted discrepancies in the dates of service provided by the assessee. The assessment was completed ex-parte as the notice under section 143(2) could not be served normally and was served by affixation.
What were the issues?
Whether the CIT(A) was justified in dismissing the appeal for delay without affording sufficient opportunity and considering the reasons for delay, especially when the assessment was ex-parte and notices were served by affixation.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: Shri P.M.Jagtap & Shri S.S. Viswanethra Ravi
This appeal filed by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-XXIV, Kolkata dated 04.05.2012 for the assessment year 2009-10 on the following grounds:-
The only issue in this appeal to be decided is as to whether the CIT-A justified in dismissing the petition for condonation of delay in filing first appeal.
The brief facts of the case are that the Assessee is an individual. The Assessee had filed his return of income for the A.Y. 2009-10 on 03.06.2009 declaring a total income at Rs. 1,54,362/-. The AO could not serve notice u/s. 143(2) of the Act upon the assessee either by sending departmental staff members or by registered post. Thereafter the notice was served by affixation on 30-09-2010 on the premises of the assessee and the procedure for affixation of notice was complied and the assessment was completed exparte u/s 144 of the Act determining the total income at Rs.27,58,311/-.
As aggrieved by the order of AO, the assessee preferred an appeal before the CIT-A with delay of 82 days, while considering the petition for delay condonation, the CIT-A found the reasons as submitted by the assessee not satisfactory and dismissed the appeal in limine, the observations of which reproduced as under:
“2.2 The submission of the appellant regarding the condonation of delay is considered but not found tenable. The A/R in the form no 35 mentioned the date of service of demand notice and assessment order on 4.5.12 and 16.4.2012. The I.T.O filed the document of service from which I found that the demand notice and assessment order was served on the appellant on 01.03.2012 by affixation. These facts established that the appellant mislead the department not showing correct date of service of demand notice and assessment order. The appellant also not prayed and condonation application at the time of filing the appeal. Now the appellant filed the submission which is not correct. The facts, therefore, show that the appellant simply did not bother or attached any importance to filing of appeal in time. Rakesh Verma2
On the basis of the above facts, it is held that the assessee presented the appeal 82 (eighty two) days beyond the date of limitation specified in sub-section (2) of section 249 of the Act, without sufficient cause, therefore, the delay in filing the appeal is not condoned. Therefore, the appeal is not condoned. Therefore, the appeal is not maintainable. 2.3 As a result, the appeal stands as dismissed.”
In this appeal, the Ld. AR submits that the CIT-A did not afford an opportunity to the assessee to defend exparte assessment made by the AO U/Sec 144 of the Act and did not appreciate the reasons stated in the submissions made before the CIT-A that the assessee was out of Calcutta due to financial crises and went to his native place in Rajasthan and all the notices were served by affixation and assessee did not receive the notices and not accepting the same as genuine is against to established law and prayed to remit the case to CIT-A for fresh consideration of appeal. The Ld. DR relied on order of CIT-A.
Heard rival submissions and perused the material available on record. We find that from the assessment order the notice u/sec 143(2) could not be served, but, however served by affixation resulting the completion of assessment in the absence of assessee. The finding of the CIT-was that the assessee did not file any petition to condone the delay in filing the appeal and the assessee mentioned wrong dates of service of demand notice and assessment order in form no-35 and also found that the demand notice and assessment order were served by affixation. The case of the assessee was that he was out of Calcutta due to financial crises and stayed in his native place in State of Rajasthan. But, however, in the interest of the justice, we remand the appeal to the file of CIT-A for fresh adjudication treating the reasons as stated in the written submission filed in support of condonation of delay as reasonable by affording an opportunity to assessee and we also direct the assessee to produce any evidence, if any, necessary for the fair adjudication of the case and we also make it clear that the assessee shall not seek any further adjournments.
In the result, the appeal of the assessee is treated as allowed
THIS ORDER IS PRONOUNCED IN OPEN COURT ON 27 /07 /2016
Sd/- Sd/- P.M Jagtap S.S. Viswanethra Ravi Accountant Member J Judicial Member
Date 27 /07/2016
Copy of the order forwarded to 1.. The Appellant/Assessee : Rakesh Verma, 101, Gouri Nath Shastri Sarani, Ground Floor, Kolkata-700 055 2 The Respondent/Department: Income Tax Officer, Ward-38-(3), Kolkata, 18, Rabindra Sarani, Poddar Court Kolkata
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