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Sh. Fateh Singh L/H of Late Sh. Dharamveer C/o Krishna Sarees, H. No. 41, HIG, Abhay Khand-1st Indirapuram, Ghaziabad Vs. ITO, Ward-1(2), Ghaziabad
October, 04th 2019

Referred Sections:
Section 147 of the Income Tax Act, 1961
Section 144 of the Act.
Section 271(1)(c) of the Act.
Section 221

        
              IN THE INCOME TAX APPELLATE TRIBUNAL
                   DELHI BENCH: `B' NEW DELHI

         ,         ,     

        BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER &
              SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER

            . / ITA Nos:- 4264 & 4265/Del/2019
                    [ [ / Assessment Year: 2008-09


Sh. Fateh Singh L/H of Late
Sh. Dharamveer C/o Krishna                   ............./Appellant
Sarees, H. No. 41, HIG, Abhay
Khand-1st Indirapuram,
Ghaziabad
PAN-ASLPS4158C
vs
ITO, Ward-1(2),
Ghaziabad                                   ............. × / Respondent


           / Appellant by : Sh. Somil Agarwal, Adv &
                            Sh. Rakesh Gupta, Adv


       ×    / Respondent by :Ms. Ashima Neb, Sr. DR

   /                                     /
Date of Hearing :    30.09.2019       Date of Pronouncement:   04.10.2019


                                      / ORDER
PER SUSHMA CHOWLA, JM:

       Out of this bunch of appeals, appeal in ITA No. 4264/Del/2019

has been filed against the order of CIT(A) dated 31.03.2019 relevant to

Assessment Year 2008-09 against the order passed under section 147

read with section 144 of the Act. Further the appeal in ITA No.
                                                        . / ITA No:- 4264/Del/2019
                                                        . / ITA No:- 4265/Del/2019



4265/Del/2019 is passed against the order of CIT(A) dated 29.03.2019

relating to Assessment Year 2008-09 against penalty levied under

section 271(1)(c) of the Act.


2.        Both these appeals relating to the same assessee were heard

together and are being disposed of by this consolidated order for the

sake of convenience.







3.        The assessee has raised the following grounds of appeal which

read as under:-


     1. That having regard to the facts and circumstances of the case, Ld. CIT(A)
        has erred in law and on facts in dismissing the appeal in limine on the
        ground that there was delay in filing appeal whereas there was no delay.
     2.    That having regard to the facts and circumstances of the case, Ld. CIT(A)
          has erred in law and on facts in treating the appeal as non-est and has
          further erred in recording the following:-
          (a)   That reply dated 07-03-2019 was unauthorized reply.
          (b)   That the demand notice was served on 16-06-2016.
          (c)   That there was no evidence that Sh. Fateh Singh was the legal heir.
     3.    That in any case and in any view of the matter, action of Ld. CIT(A) in
          dismissing the appeal in limine, is bad in law and against the facts and
          circumstances of the case.
     4.    That having regard to the facts and circumstances of the case, Ld. CIT(A)
          has erred in law and on facts in not deciding the case on merits and
          without considering the various grounds of appeal raised with the appeal
          memo and more particularly when written submissions and paper book
          filed by the assessee."

4.        The assessee in both the appeals is aggrieved by the dismissal of

the appeal by the CIT(A) in limine that there was delay in filing the

appeal late before him and also treating the appeal as nonest.


5.        Briefly in the facts of the case, the assessment order under

section 144/147 of the Act was passed on 31.03.2016. The assessee

                                                                                 Page | 2
                                               . / ITA No:- 4264/Del/2019
                                               . / ITA No:- 4265/Del/2019



demised on 14.09.2016. The legal heirs of the assessee claimed that the

said assessment order was not served in time, but were served after the

legal heirs applied for certified copies, which was given on 26.09.2017.

The appeal was filed before the CIT(A) on 18.10.2017 i.e. within the

period of 30 days from the date of receipt of certified copies. The CIT(A)

was of the view that the demand notice was duly served upon the

assessee on 15.06.2016 through affixture by the Income Tax Inspector.

The assessee strongly objects to the same. The appeal of the assessee

for the aforesaid reason was dismissed in limine. Further the CIT(A) has

also noted that there was no evidence to the fact that Shri Fateh Singh

was the legal heir and no document to establish his identity was

furnished. He also noted the fact that during assessment proceedings

Shri Ramprakash son of assessee had attended the proceedings. The

CIT(A) thus dismissed the appeal as nonest. Similarly the appeal of

assessee against the order levying penalty u/s 271(1)(c) of the Act was

dismissed.


6.    The assessee is in appeal against the aforesaid order passed by

the CIT(A). The learned AR for the assessee strongly objected to the

observations of the CIT(A), whereas the learned DR for the Revenue

placed strong reliance on the order of the CIT(A).


7.    We have heard the rival contentions and perused the record. The

first issue which arises in the present appeal is against the order of the

                                                                   Page | 3
                                                . / ITA No:- 4264/Del/2019
                                                . / ITA No:- 4265/Del/2019



CIT(A) in treating the appeal as nonest and also in dismissing the

appeal in limine. The assessment order was passed in the case of Shri

Dharamveer Singh on 31.03.2016. The said order was not served upon

the assessee who demised on 14.09.2016. The case of the legal heir of

the assessee before us is that he was the son of the deceased assessee

alongwith his brother Shri. Ramprakash. The status of his being legal

heir is also acknowledged by the AO as per the evidence placed at pages

1-1A (English Translation) of the paper book. The appeal before the

CIT(A) was electronically verified by the Fateh Singh i.e. son of the

deceased assessee. In such circumstances, there is no merit in the

order of CIT(A) in observing that Fateh Singh had failed to establish his

identity. We reverse the finding of the CIT(A) in this regard.







8.    Now coming to the second aspect of the case of CIT(A) that the

present appeal has been filed after the delay of about 13 months. The

assessee in this regard had made a representation before the CIT(A)

that after notice under section 221 was served upon the legal heirs of

the assessee, enquiries were made and certified copies of the

assessment orders were applied which were handed over on 26.9.2017.

The assessee claimed to have filed the appeal within 30 days from the

date of receipt of certified copies. The case of Revenue on the other

hand is that demand notice was duly served upon the assessee through

affixture by an Income Tax Inspector. The present appeal has been filed

by the legal heir who received the assessment order on 26.9.2017 and
                                                                   Page | 4
                                                . / ITA No:- 4264/Del/2019
                                                . / ITA No:- 4265/Del/2019



the appeal thereafter was filed within a period of 30 days. With regard

to the penalty order passed under section 271(1)(c) of the Act dated

30.09.2016, the assessee sought information under the Right to

Information Act, 2005 and it has been reported that the order dated

30.09.2016 dispatched to the assessee was returned back unserved.

The certified copy of the order was provided on 3.10.2017 to the learned

AR of the assessee.


9.      In such facts and circumstances, we find merit in the plea of the

assessee that it had filed the present appeal both in the quantum and

the penalty appeals within a period of 30 days from the date of receipt

of certified copies of the respective orders. Hence there was no delay in

filing the appeal before the CIT(A). Accordingly, we reverse the findings

of the CIT(A) in this regard. The issue is remitted back to the file of

CIT(A) to decide both the quantum additions and levy of penalty, in

accordance with law, after affording reasonable opportunity of hearing

to the assessee. The grounds of appeal raised by the assessee are thus

allowed.


10.     In the result, both the appeals of the assessee are allowed.


      Order pronounced in the open court on 04th day of October, 2019.


(B.R.R. KUMAR)                                  (SUSHMA CHOWLA)
 /ACCOUNTANT MEMBER                           Û /JUDICIAL MEMBER
ã /  Dated : 04th October, 2019.
SH
                                                                       Page | 5
                                                      . / ITA No:- 4264/Del/2019
                                                      . / ITA No:- 4265/Del/2019



    /Copy of the Order is forwarded to :

1.    / The Appellant;
2.   × / The Respondent;
3.    () / The CIT(A)
4.    ,   , ã / DR, ITAT, Delhi
5.   [  / Guard file.



                                                            / BY ORDER,


×  //True Copy//

                                                                  ,
                                                ,ãã /
                                               ITAT, Delhi

       Draft dictated                                       30.09.2019
       Draft placed before author
       Approved Draft comes to the Sr.PS/PS
       Order signed and pronounced on
       File sent to the Bench Clerk
       Date on which file goes to the AR
       Date on which file goes to the Head Clerk.
       Date of dispatch of Order.
       Date of uploading on the website                     04.10.2019




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