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
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. / 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
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. / 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
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. / 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
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. / 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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