NAVKAM MARKETING & FINANCE (P) LTD.,KOLKATA vs. D.C.I.T CC - 2(7),KOLKATA., KOLKATA

This is an appeal by the Assessee against the order dated 18.12.2012 of CIT(A)-XXXII, Kolkata, relating to AY 1995-96.

The Assessee is a company. It filed return of income for AY 1995-96 declaring total loss of Rs.31,945/-. The Assessment u/s.147 r.w.s.143(3) of the Income Tax Act, 1961(Act) was completed making addition of Rs.13,22,318 to the total income returned by the Assessee. In respect of the addition made in the assessment proceedings the AO initiated penalty proceedings u/s.271(1)( c) of the Act. Against the aforesaid order of the AO the Assessee preferred appeal before the CIT(A). There was a delay of 88 days in filing appeal before the CIT(A). The Assessee filed a written submission before the CIT(A) in which the Assessee submitted that notice of demand u/s.156 of the Act was received by the Assessee on 28.1.2000. The Assessee misplaced the said notice and it was not possible to file appeal without annexing copy of notice of demand. The Assessee applied for certified Marketing & Finance (P) Ltd. A.Y.1995-96 1 copy of the notice of demand on 22.2.2000. The same was received by the Assessee only on 24.4.2000 and thereafter appeal was filed by the Assessee on 25.4.2000. The delay in filing the appeal before CIT(A) was thus explained by the Assessee.

The CIT(A) did not accept the plea of the Assesssee. He held that the notice of demand was received by the Assessee on 28.1.2000 and the same was lost. The Assessee applied for certified copies of notice of demand only on 22.2.2000. There was no evidence produced by the Assessee to show that the original notice of demand was lost. The Assessee has also failed to file the application for condonation of delay along with the Memorandum of Appeal in Form No.35. The CIT(A) therefore held that the Assessee did not both or attach any importance to filing of appeal in time. The CIT(A) thus held that the filing of the appeal by the Assessee beyond the period prescribed u/s.249(2) of the Act was without any sufficient cause and therefore dismissed the appeal in limine.

Aggrieved by the order of the CIT(A), the Assessee has preferred the present appeal before the Tribunal. The Assessee made a request for adjournment but the same was refused.

After considering the order of the CIT(A), we are of the view that the delay in filing the appeal ought to have been condoned by the CIT(A). The CIT(A) did not believe the plea of the Assessee that the original notice of demand was lost for want of proof. It is not possible to produce evidence in this regard. It was not proper to have insisted on proof of loss of original notice of demand. In our view the circumstance that the Assessee had applied for a duplicate certified copy of the notice of demand within the period of 30 days for filing appeal before CIT(A) against the order of the AO imposing penalty by itself was sufficient to show that the plea of the Assessee is true. The certified copy of notice of demand was received on 24.4.2000 and appeal was filed immediately on 25.4.2000. Taking into consideration all these Marketing & Finance (P) Ltd. A.Y.1995-96 2 circumstances, we are of the view that there was sufficient cause for the delay in filing appeal before CIT(A). We accordingly condone the delay in filing appeal before CIT(A). Since the CIT(A) has not decided the appeal on merits, we remand the issue regarding validity of levy of penalty to the CIT(A). The CIT(A) will decide the appeal of the Assesssee on merits after affording opportunity of being heard to the Assesssee. For statistical purpose the appeal of the Assessee is treated as allowed.

In the result the appeal is treated as allowed for statistical purpose.