2018 (7) TMI 2050 - HC - Income Tax

Condonation of delay denied - Non-availability of the order of CIT(A) - HELD THAT - We are of the opinion that without the proof of the service of the impugned order of CIT (A) being placed on record before the learned Tribunal or the learned Tribunal having any other material to draw an inference of the actual service of the impugned order on the assessee, the learned Tribunal ought not to have dismissed the said appeal on the ground of delay. The Tribunal was not justified in placing negative burden on the assessee to establish the non-service of the order. It was for the Revenue to establish the service of the order on the assessee. We are therefore inclined to set aside the impugned order of the learned Tribunal and remit the case back to the learned Tribunal for deciding the appeal on merits in accordance with law.

Summary

Issues: Delay in filing appeal, presumption of service of order, burden of proof on service of order

Delay in filing appeal:
The Appellant-Assessee filed an appeal against the order of the ITAT, which was dismissed due to delay. The Tribunal did not consider the merits of the case and focused on the delay in filing the appeal. The Tribunal noted that the appeal was filed late, and the assessee did not file an application for condonation of delay promptly. The Tribunal emphasized that the assessee did not show vigilance towards its rights and interests. The Tribunal presumed that the order of the CIT(A) was served based on the dispatch details provided by the CIT(A) office. The assessee argued that they only became aware of the order when contacted by the lower Assessing Authority, and they applied for a certified copy of the order, which was received within the limitation period. The Tribunal's decision to dismiss the appeal solely on the ground of delay was challenged by the appellant.

Presumption of service of order:
The Tribunal presumed that the order of the CIT(A) was served based on the dispatch details provided by the CIT(A) office. The appellant argued that there was no finding by the Tribunal that the dispatched order was delivered to them. They highlighted that they only learned about the order when contacted by the lower Assessing Authority and applied for a certified copy, which was received within the limitation period. The appellant contended that the burden should be on the Revenue to establish the service of the order, and the negative burden placed on them by the Tribunal was unjustified. The Tribunal's decision to presume service without concrete proof was challenged before the Court.

Burden of proof on service of order:
The Court observed that the Tribunal erred in placing a negative burden on the assessee to establish the non-service of the order. The Court emphasized that without concrete proof of service, the Tribunal should not have dismissed the appeal based on delay. It was stated that it was the Revenue's responsibility to establish the service of the order on the assessee. Therefore, the Court set aside the Tribunal's order and remitted the case back to the Tribunal for a decision on the merits in accordance with the law. The Court highlighted the importance of placing the burden of proof on the appropriate party regarding the service of legal orders.