2015 (9) TMI 661 - AT - Income Tax

Condonation of delay - delay of about 554 days - Held that - It appears that for the first time the assessee has taken the plea that address mentioned on registered post is wrong or that the letter was sent on wrong address and there was no business at that time as it was closed in 2008. As regards the Plea that there was no business as it was closed in 2008, do not find an iota of evidence in support of this contention. Even otherwise also this contention of the assessee cannot be accepted on the ground that the assessee has never submitted any application before the AO regarding change of address, if any. The above plea taken by the assessee is afterthought. Thus, decline to accept the contention of the assessee. From the records, it is clear that the assessment order alongwith demand notice were sent by registered post on 31/12/2009 (photocopy of receipt from Postal Authorities is available on record). There is no dispute that the registered letter was received back with remarks from the Postal Authorities refused to receive . Photocopy of envelope is also available on record. Fully agree with these observations of the CIT that there are no sufficient reasons for the inordinate delay in filing the appeal almost after one and half years. It is well settled that the phase sufficient cause is not a question of principle, but is a question of fact. Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as sufficient cause for condonation of delay depends only on the fact placed by the applicant / appellant before the authority concerned. In the instant case, the facts are crystal clear. There is no evidence on record to show that there was diligence on the part of assessee/appellant. Furthermore, party guilty of negligence can not ask for condonation of inordinate delay of about 554 days in filing the appeal before the CIT(A). - Decided against assessee.

Summary

Issues Involved:
1. Service of notice under section 143(2) within the limitation period.
2. Delay in filing the appeal before the CIT(A).
3. Service of demand notice and assessment order.
4. Reasonable opportunity and condonation of delay.

Detailed Analysis:

1. Service of Notice under Section 143(2) Within the Limitation Period:
The assessee contended that no notice under section 143(2) was served within the limitation period, and no proof was brought on record, rendering all subsequent proceedings liable to be annulled. The CIT(A) held that the notice was issued on 29/03/2008 and sent by post, which was within the prescribed period. The Tribunal found no merit in the assessee's claim regarding the service of notice under section 143(2).

2. Delay in Filing the Appeal Before the CIT(A):
The assessee filed the appeal before the CIT(A) on 08/08/2011 against the AO's order dated 24/12/2009, resulting in a delay of 554 days. The CIT(A) noted that the demand notice and assessment order were sent by registered post on 31/12/2009, and the delay was unjustified. The Tribunal upheld this finding, emphasizing that the assessee did not submit a separate application for condonation of delay and failed to demonstrate sufficient cause for the delay.

3. Service of Demand Notice and Assessment Order:
The CIT(A) confirmed that the demand notice and assessment order were sent by registered post on 31/12/2009, and the postal authorities marked the envelope as "refused to receive." The assessee argued that the address on the registered letter was incorrect and that the business had closed in 2008, making it impossible to refuse the notice. The Tribunal rejected this argument, noting that the address on the registered letter matched the address in the return of income and other documents submitted by the assessee. The Tribunal concluded that the assessee's claim of non-receipt was an afterthought.

4. Reasonable Opportunity and Condonation of Delay:
The assessee contended that the CIT(A) did not afford a reasonable opportunity and treated the appeal as out of limitation without deciding the grounds on merit. The Tribunal found that the assessee's counsel attended multiple hearings before the AO but failed to produce the required documents. The assessment was completed ex-parte under section 144 due to non-cooperation. The Tribunal agreed with the CIT(A) that there was no sufficient cause for the delay and that the assessee was guilty of negligence.

Conclusion:
The Tribunal upheld the CIT(A)'s order, finding no infirmity in the decision to dismiss the appeal due to the inordinate delay of 554 days. The Tribunal emphasized that "sufficient cause" for condonation of delay is a factual question and depends on the circumstances of each case. The appeal was dismissed, and the Tribunal did not find it necessary to address the first ground of appeal, as it would be of academic interest only.

Order:
The appeal of the assessee is dismissed. Order pronounced in the Open Court on 22.6.2015.