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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM
आदेश / ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2008-09, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-IV, Surat (in short “ld. CIT(A)”] in Appeal No. CAS-IV/263/10-11, dated 16.02.2012 which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. At the outset, Ld. Counsel for the assessee submitted that assessee has opted the benefit of Vivad Se Viswas Scheme (in short “VSVS”) in respect of ITA No.90/SRT/2020 for assessment year 2008-09. However, the Department has not accepted the assessee’s claim under VSVS since there is a delay in filling the appeal before the Tribunal. Although the Department has accepted the payment and Form No.1, 2 and 3 were generated. The Ld. Counsel submits that there is no delay in filling the appeal before the Tribunal and to prove this fact, assessee has submitted an affidavit. The content of the said affidavit is reproduced below:
90/SRT/2020/AY.2008-09 Sanjay S. Jain “1) The assessee begs to prefer this application for clarifying the allegation made by revenue that there is delay in appeal filed against the order of the Commissioner of Income Tax (Appeals)-IV dated 16.02.2012 which is received by the assessee only on 03.03.2020. 2) That, assessee filed the appeal before Honourable Tribunal on 19.03.2020 which is therefore in time. 3) That learned PCIT vide order dated 11.02.2021 rejected assessee’s declaration under DTVSV on the ground that the date of communication of appeal cannot be ascertained as the same was passed 8 years ago. Further, it was remarked that circumstantial evidence of the payment of the full demand pointed to the fact that assessee received appellate order but had prejudiced no further appeal. 4) That the grounds of rejecting the declaration under DTVSV is proved to be wrong as the date of communication of appellate order could be easily ascertained from file of CIT(A) as same was received personally on 03.03.2020. the assessee did not pay the demand before 8 years but it was paid only on 22.09.2017 of Rs.5,25,700/- and on 18.03.2019 of Rs.20,71,112/-. 5) That assessee made conscious and continuous efforts for collecting the order of CIT(A) as can be seen from assessee’s letter addressed to CIT(A) dated 09.03.2013, 11.09.2015, 28.03.2016 and 18.02.2020. 6) That the department changed the stand and they raised the issue subsequently before Honourable Gujarat High Court that as the appellant couldn’t be served the order by postal authority on the ground that the party has left, it should be deemed that the order was served when the postal authority attempted to serve the order. 7) That as assessee didn’t refuse to take delivery of order of CIT(A) but as it was returned unserved by the postal authority with remarks “left”. So it cannot be said to be service of order as there was no service by way of affixure. 8) Therefore, there is no delay in filling of appeal before Honourable Tribunal on the basis of case laws canvassed before Honourable Tribunal. 9) Without prejudice, it is prayed that the delay in filling of appeal must please be condoned on the basis of legal maxim “Lex non cogit ad impassibilia”. The assessee couldn’t file the appeal before Honourable Tribunal without the order of CIT(A).” 3. Based on the contents of the affidavit, the Ld. Counsel for the assessee argued that assessee has received the order of ld. CIT(A) on 03.03.2020 and soon after receiving the order of ld. CIT(A),the assessee
90/SRT/2020/AY.2008-09 Sanjay S. Jain filed appeal before Tribunal on 19.03.2020. Therefore, there is no delay in filling the appeal at all.
On the other hand, Learned Departmental Representative (ld. DR) for the Revenue submitted that there was delay in filling the appeal and this fact can be proved that the assessee has paid the demand partly long back therefore assessee was aware about the order of ld CIT(A), hence delay should not be condoned. The ld DR also pointed out that there is no information about penalty order under section 271(1)(c) of the Act about the assessee under consideration.
Per contra, ld Counsel submitted that assessee paid the part demand based on the order of assessment and not based on the order of ld CIT(A). The assessee wrote several letters to ld CIT(A) to furnish him copy of the appellate order and then ld CIT(A) furnished the copy of order on 03.03.2020. Hence there is no delay in filing the appeal before the Tribunal.
We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished. We do not find any merit in the submissions of the ld. DR to the effect that assessee has paid the demand in 2012 itself, in fact the assessee has paid part demand in 2017 and 2019 based on the assessment order. About the penalty order under section 271(1)(c) of the Act, we are of the view that there is no issue before us to adjudicate such penalty. 7. We note that when the assessee approached to the Hon'ble jurisdictional High Court of Gujarat about the issue under consideration, the Hon'ble Gujarat High Court, vide order dated 30.09.2021, in R/SCA No.14533 of 2021 has held as follows: “Resultantly, the impugned communication dated 11.02.2021 displayed on the portal of the Department rejecting the declaration for the petitioner under the VSV Act is quashed and set aside. The respondents are directed to accept the declaration under the said Act for the A.Y.
90/SRT/2020/AY.2008-09 Sanjay S. Jain 2008-2009. It is clarified that the issue of condonation of delay in the pending appeal before the Tribunal, if results against the petitioner, the consequential effect on the proceedings of VSV Act is permitted. It is also being clarified that the outcome of the very appeal on merits will have no bearing once threshold of the application of condonation is cleared by the petitioner.” 8. The ld Counsel submits that appeal was not belated, therefore assessee filed the declaration under DTVSV scheme for settlement of dispute. However, the declaration was rejected by Pr. CIT vide his order dated 11.02.2021 on the ground that the date of communication of appeal order cannot be ascertained as the same was passed eight years ago. Further, it was remarked that circumstantial evidence of the payment of the full demand pointed to the fact that assessee received appellate order but had prejudiced no further appeal. The ld Counsel further submits that in assessee`s case, the order of CIT(A) was passed on 16.02.2012. However, the assessee did not receive the copy of the same till the specified date. Assessee wrote a letter to CIT(A) requesting for the copy of order vide letter dated 11.09.2015, 28.03.2016, 18.02.2020, 19.02.2020 and ultimately the assessee through his CA Shri S. B. Vaidya received the copy of order of CIT(A) on 03.03.2020 personally together with postal envelope with speed post no. EG484102055IN from the office of CIT(A). Even the assessing officer has not levied the penalty u/s 271(1)(c) of the Act as the order was not served to the assessee although the penalty proceedings were initiated on disputed addition.
The ld Counsel pointed out that assessee never accepted the addition by making the payment of tax before eight years. In fact, assessee made the payment of tax and interest not before eight years but on 18.03.2019 of Rs. 20,71,112/-. This demand was paid in response to letter of assessing officer dated 23.01.2019. So, the contention made in the rejection order is totally wrong and contrary to the facts on record. It is to be noted that assessee filed the appeal before Hon`ble Tribunal within time
90/SRT/2020/AY.2008-09 Sanjay S. Jain by mentioning date of communication as 03.03.2020 in Form No. 36. The registry of ITAT didn’t issue the defect notice for delay of appeal till date.
Based on these facts, we note that there is no delay in filing of appeal. We note that assessee was not in possession of the appellate order which is required for filing of appeal. We note that Hon`ble Apex Court in the case of Life Insurance Corp Ltd. v. CIT (1996) 219 ITR 410 held that the law does not contemplate or require the performance of an impossible act – Lex non cogit ad impossibilia. The Hon`ble Supreme Court in the case of State of MP Vs. Narmada Bachao Andolan [(2011) 7 SCC 639], applied this maxim and held that thus, where the law creates a duty or a charge and the party is disabled to perform it without any fault on his part and has no control over it, the law will in general excuse him. Therefore, we note that based on the facts and circumstances, there is no evidence with the Department that assessee has received the order of the CIT(A) in the year 2013, that is, the Department has failed to prove this fact. We note that the assessee has wrote several letters to the ld. CIT(A) to deliver him the appellate order vide assessee’s letter dated 11.09.2015, 28.03.2016, 18.02.2020, and 19.02.2020. The assessee got copy of order of ld CIT(A) on 03.03.2020 which the Tribunal has accepted and did not give and defect memo to the assessee and soon after that assessee filed appeal on 19.03.2020 which the Tribunal has accepted and did not give and defect memo to the assessee, hence there is no delay in filing the appeal.
Before parting, we would make it clear that we have not adjudicated the assessee`s appeal on merit. We have adjudicated the issue relating to condonation of delay in filing appeal before Tribunal, as the assessee has opted the scheme of vivad-se-viswas and wanted to settle the issue under said scheme and paid the taxes and also Form Nos. 1, 2 & 3 were generated.
90/SRT/2020/AY.2008-09 Sanjay S. Jain
In the result, the appeal filed by the assessee is allowed to the extent indicated above.
Order is pronounced in the open court on 05/08/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963.
Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat �दनांक/ Date: 05/08/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat