IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES : "F" NEW DELHI
BEFORE SHRI G.C. GUPTA, VICE PRESIDENT
AND SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER
ITA No: 1197/Del/2011
AY : - 2004-05
Petronet LNG Ltd., vs. DCIT
World Trade Centre Circle 14(1)
1st Floor, Babar Lane New Delhi.
New Delhi.
(PAN AAACP8148D)
(Appellant) (Respondent)
Appellant by : Shri C.S. Aggarwal, Sr. Advocate,
Shri R.P. Mall, Advocate
Respondent by :Shri Vikram Sahay, Sr. DR
Date of Hearing :09.7.2015
Date of pronouncement :30.9. 2015
ORDER
PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER
This is an appeal file by the assessee directed against the order of the
Commissioner of Income Tax (A) dated 28.1.2011 for the assessment year 2004-05
on the following grounds :-
1. "That the learned Commissioner of Income Tax (Appeals) has erred both
on law as well as on facts in dismissing the appeal in limine.
2. That the learned Commissioner of Income Tax (Appeals) ought to have
condoned the alleged delay in filing the appeal, which appeal had been
filed on 30.08.2010 against the order of assessment dated 27.09.2006,
which order was served, without notice of demand under section 156 of
the Act on assessee on 21.11.2006, despite the fact that, it had not
been disputed that no Notice of demand had been served on assessee in
ITA No. 1197/Del/2011
Petronet LNG Ltd. vs. DCIT
respect of the said order of assessment and time to file an appeal
commences with the service of notice of demand and no valid appeal
could be filed without a notice Of) demand.
3. That the learned Commissioner of Income Tax (Appeals) has failed to
appreciate that no appeal could have been filed without a notice of
demand and in the absence of notice of demand it was advised by the
Chartered Accountant to file appeal as and when, the notice of demand
is served. In fact it was only when the Chartered Accountant advised
when the matter was reviewed about the pending appeals for the
instant assessment year after the order of the Tribunal was received
and an application was filed on 13.08.2010 for the service of notice of
demand and thereafter an appeal was filed on 30.8.2010 as such it
could not be held that the appeal filed was belatedly filed.
4. That the learned Commissioner of Income Tax (Appeals) has further
failed to appreciate that merely because the assessee didn't request the
AO to serve a copy of notice of demand u/s 156 prior to 13.08.2010,
could not be regarded as a valid ground for holding that there was a
delay in filing appeal and further the purported delay if any occurred
could not be condoned.
5. That the learned Commissioner of Income Tax (Appeals) failed to
appreciate that the Apex Court in the case of Collector, Land Acquisition
vs Mst. Katiji And Others reportedin 167 ITR 471, wherein it has been
held that no prejudice would be caused to entertain an appeal though
filed belatedly.
6. That the learned Commissioner of Income Tax (Appeals) failed to
appreciate that assessee has not slept over the matter and the
judgment relied on by him are totally inapplicable.
7. That the learned Commissioner of Income Tax (Appeals) further failed
to appreciate that the addition made to income of Rs. Rs. 2,33,91,260/-
otherwise is untenable in law as had been held by Hon'ble ITA T and
Hon'ble HC for the preceding years where similar additions made have
been deleted, and as such the addition made of Rs. 2,33,91,260/- as
interest income ought to have been deleted . "
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ITA No. 1197/Del/2011
Petronet LNG Ltd. vs. DCIT
2. Ld. CIT(A) had dismissed the appeal of the assessee by rejecting the
application for condonation of delay in filing of the appeal by 47 months.
3. Aggrieved the assessee is in appeal.
4. Ld. Counsel for the assessee Shri C.S. Aggarwal, Senior Advocate,
submitted that :
a) The assesee is a PSU Company;
b) It was not served with a notice of demand and hence, it did not filed the
appeal, as it was under bonafide belief that no appeal can be filed without
the notice of demand;
c) The assesee company had not filed appeal within 30 days from the date of
service of the order of assessment, since it did not receive the notices of
demand and as it was so advised by its Chartered Accountant Shri Mahesh ;
d) Rule 45, of the Income Tax Rules, prescribes memo of appeal in form No. 35
and requires that this should be accompanied by, the order appealed against
and the notice of ;
e) The period to file the appeal should be taken, as an when notice of demand
u/s 156 of the Income Tax Act, 1961 is served and that such a notice of
demand has not been served till date, despite request made to the AO on
13.8.2010;
f) The company executive Shri R.K. Goel filed a duly sworn affidavit
confirming these facts that the delay of 45 months was caused on account
of sufficient cause i.e. non receipt of notice of demand u/s 156;
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Petronet LNG Ltd. vs. DCIT
g) That there is no finding of the Ld. CIT(A) that the notice of demand was
served on the assessee and the period of limitation to prefer an appeal is to
be counted after such notice of demand is served;
h) That the issue involved in the instant appeal is identical to the issue that
arose in the preceding assessment years and the Hon'ble ITAT has
adjudicated all the issues in favour of the assessee and under those
circumstances, no motive can be attributed to the assessee for not filing the
appeal in time.
i) That the assessee had a bonafide belief that the appeal can be filed, only on
receipt of the demand notice and such bonafide belief was due to a
professional opinion and hence there is reasonable cause for condonation of
delay. He relied on the following case laws :-
1. Surya General Traders vs. Commercial Tax Officer of High Court of
Andhra Pradesh
2. Church of our lady of Grace vs. Commissioner of Income Tax reported
in 34 SOT 315 (Mum.)
3. M/s. Mahalakshmi Real Estates vs. Income-tax Officer (ITA No.
991/Hyd/2009)
4. Wellworth Shares and stock broking Ltd. vs. ACIT (ITA No.
991/Hyd/2009)
5. Dinesh Nagindas vs. CIT (2005) 273 ITR 229
6. Auto Centre vs. State of Uttar Pradesh (2005) 278 ITR 291 (All)
7. Parijat Chemicals P. Ltd. vs. ITO (1995) 216 ITR 221 (MP)
8. Smt. Rani Aggarwal vs. ACIT (2004) 265 ITR 22
9. Prem Chand Bansal vs. ITO (1999) 237 ITR 65 (del)
10. R. Seshmal vs. ITO 237 ITR 185 (Mad.)
11. Prima Paper & Engineering P. Ltd. vs. CIT reported in 221 Taxmann
209 (Bom)
12. Improvement Trust, Ludhiana vs. Ujagar Sing & Ors. Civil Appeal No.
2395 of 2008 Supreme Court Judgment dated 9th June, 2010
13. M/s. Sartorious Mechatronics India (P) Ltd. vs. ACIT ITA Nos. 982 to
984/Bang/2013 dated 27.3.2015
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Petronet LNG Ltd. vs. DCIT
5. Ld. DR Shri Vikram Sahay on the other hand opposed the contention of the
Ld. Counsel for the assessee and submitted that, this bench of the Tribunal had
directed the department to file evidence regarding the service of notice of demand
u/s 156 of the Income Tax Act 1961 on the assessee, after verification of the record.
He filed copies of letter of ACIT range XIX, New Delhi dated 8.7.2015, wherein a
letter of the Deputy Commissioner of Income Tax, Circle XIX, New Delhi dated
8.7.2015 was enclose and copy of the income tax computation form and notice of
demand u/s 156 of the Income Tax Act and copy of speed post acknowledgement
date 17.11.2006 was filed. He argued that the AO has confirmed that copy of the
assessment order along with the computation form and demand notice showing nil
demand was dispatched by speed post on 17.11.2006 to the assessee. He argued
that these papers are being filed on the directions of the bench and the entire base
on which the assessee rested its case is demolished by these papers. He further
submitted as follows :-
a) At page 43 of the assessee's paper book a letter dated 12th August,2006 is
addressed to Deputy Commissioner of Income Tax requesting for notice of
demand alongwith the income tax assessment order and this was filed only
on 13th August, 2010. He submits that this shows absolute negligence on the
part of the assessee and that no explanation is given at any stage of the
proceedings before the CIT(A) on this discrepancy.
b) The assessment resulted in NIL demand, after adjustment of taxes. Issuing
notice of NIL demand cannot be a basis for not filing an appeal.
c) A delay of four months is an abnormal delay and the assessee was negligent
and hence not demonstrated reasonable cause.
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Petronet LNG Ltd. vs. DCIT
d) The affidavit filed by one of the officer of the company Shri R.K. Goel, Senior
Manager mentioned that Shri Mahesh Gupta Chartered Accountant had
advised the company to await for the notice of demand and whereas there is
no independent confirmation from Shri Mahesh Gupta.
e) That the assessee states that he has not received notice of demand and that
an appeal cannot be filed without a notice of demand and that he has asked
for the notice of demand. At the same time, the assessee filed an appeal
without notice of demand on 30.8.2010. What the assessee has done now
could have been done earlier.
5.1. He distinguished the decisions relied upon by the Ld. Counsel for the assessee
and submitted that the issue of condonation of delay is a factual matter and the
circumstances on each case are different.
6. In reply the Ld. Counsel for the assessee submitted that the letter at page 43
of the assessee's paper book is not 12th August, 2006 as typed, but was actually,
12th August, 2010 and that this was a typographical error. He submitted that the
claim of the D.R. that a notice of demand u/s 156 was issued to the assessee by
speed post is not believable. He argued that the acknowledgement which is
photocopied on the reverse of notice of demand u/s 156 is no evidence at all. He
ridiculed the papers filed by the department and submitted that these do not help
the case of the department. He pointed out that in the case of M/s. Sartorious
Mechatronics India vs. ACIT, a delay of 1836 days was condoned for reason that
the assesee was guided by professional advice and had not filed an appeal. He
argued that being a Govt. Organisation a considerate approach has to be shown. He
reiterated that there is no reason for the assesee, not to file an appeal.
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Petronet LNG Ltd. vs. DCIT
7. Rival contentions heard. On careful consideration of the facts and
circumstances of the case and a perusal of the papers on record and the orders of
the authorities below as well as case law cited, we hold as follows.
8. The revenue in this case has stated that the notice of demand u/s 156 was
served on the assessee along with the assessment order and computation form.
Evidence of dispatch of the same through speed post on 17.11.2006 is produced
before us. The assessee denies the receipt of the same, but is unable to controvert
the documentary evidence produced by the revenue. When the document is sent by
speed post and when the same is not returned to the sender by the postal
department, the presumption is that it has been served on the assessee. Hence we
presume that the notice of demand u/s 156 was served on the assessee along with
the assessment order and computation form. Ld.Counsel for the assessee wanted
the Bench not to take cognizance of these documents filed by the Revenue. We are
unable to accept this submission. Ld. DR pointed out that these are filed only on the
direction of the bench. We see no reason as to why these papers filed by the
revenue have to be rejected. Thus the entire basis on which the assessee based his
argument for condonation of delay is devoid of merit.
9. Even otherwise if it has to be considered that notice of demand has not been
served on the assessee, the assessee filed a letter dated 12th August, 2006 on 18th
August, 2010 before AO, requesting for notice of demand. The submission of the
Ld. Senior Counsel that the date 12th August, 2006 is a typographical error cannot
be accepted. This claim is not supported by any evidence other than circumstantial
evidence i.e. the date of filing of the application. We also find that the signature of
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Petronet LNG Ltd. vs. DCIT
Mr. R.K. Goel, Sr. Manager, (F&A) on the letter dated 12th August, 2006 and the
affidavit executed on 25th August, 2010 is at variance.
10. The assessee stated in his letter dated 27th January, 2011 addressed to the
Commissioner of Income Tax (A) that it was only after it received the order of the
Tribunal on 30.7.2010 for the assessment years 2001-02, 2002-03 and 2003-04 the
status of the appeal in respect of the instant asstt. Year 2004-05 was examined and
it was pointed out that no appeal has been filed, as no notice of demand was
received. This statement shows that during the entire interregnum period of more
than three years, the assessee has not pursued the matter to obtain the -NIL-
notice of demand. This period of delay has not been explained.
11. On the argument that an appeal was not filed on the advise of the Chartered
Accountant, the only evidence filed is an affidavit of the employee of the assessee.
This is a self-serving document as the Chartered Accountant has not corroborated
the same.
12. Under these circumstances, we concur with the view of the Ld. CIT(A) that
the assessee could not demonstrate that, it was prevented by sufficient cause, in
filing this appeal within the time stipulated under the Act. We do not find any
infirmity in the order of the Ld.CIT(A).
13. Coming to the decisions relied upon by the Ld. Senior advocate, we have
perused all of them and we hold that each case, is peculiar to its facts and
circumstances. In none of the cases it has been laid down that in each and every
case, condonation has to be granted as a matter of rule. Unlike in the cases cited,
the basic reason cited by the assessee in this case is found incorrect. Hence there is
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Petronet LNG Ltd. vs. DCIT
a factual difference. In this case, the department has produced evidence to prove
that notice u/s 156 was dispatched along with the assessment order to the assessee.
As already noted the very ground on which the assessee based its entire case for
condonation of delay fails and consequently we uphold the order of the first
appellate authority and dismiss the appeal of the assessee.
14. In the result the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 30th September, 2015.
sd/- sd/-
(G.C. GUPTA) (J. SUDHAKAR REDDY)
VICE PRESIDENT ACCOUNTANT MEMBER
Dated: the 30th September, 2015
`veena'
Copy of the Order forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
6. Guard File By order
Dy. Registrar
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ITA No. 1197/Del/2011
Petronet LNG Ltd. vs. DCIT
Sl. Description Date
No.
1. Date of dictation by the Author 9.7.2015
2. Draft placed before the Dictating Member 12.7.2015
3. Draft placed before the Second Member
4. Draft approved by the Second Member
5. Date of approved order comes to the Sr. PS
6. Date of pronouncement of order
7. Date of file sent to the Bench Clerk
8. Date on which file goes to the Head Clerk
9. Date of dispatch of order
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