2019 (2) TMI 1265 - AT - Income Tax

Dismissal of appeal in limine for delay - statutory notices issued by the assessing officer could not be served on the assessee - HELD THAT - As could be seen from record, assessment for the impugned assessment year was completed under section 144 of the Act since the statutory notices issued by the assessing officer could not be served on the assessee. It is also evident, learned Commissioner (Appeals) has dismissed the appeal filed by the assessee in limine on the ground that the appeal was filed beyond the period of limitation prescribed under the Act. On a perusal of the impugned order of Commissioner (Appeals) it is evident, though, in paragraph 3 of the order he has referred to the date of assessment order and date of filing of appeal before him by the assessee, however, he has not specifically mentioned when the assessment order along with the demand notice was served on the assessee. He has also not mentioned the quantum of delay. It appears, Commissioner (Appeals) himself was not sure about the actual delay, if any, in filing the appeal. There is no delay in filing the appeal before the Commissioner (Appeals). Therefore, in our considered opinion, Commissioner (Appeals) has erroneously dismissed assessee s appeal in limine on the ground of delay. In view of the aforesaid, we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore all the issues arising in the present appeal to learned Commissioner (Appeals) for de novo adjudication on merits.

Summary

Issues:
- Appeal against order of learned Commissioner of Income Tax (Appeals) for assessment year 2006-07.
- Dismissal of appeal in limine for delay without examining merits of addition made.
- Service of assessment order and demand notice on the assessee.

Analysis:
1. The appeal was filed against the order of the learned Commissioner of Income Tax (Appeals) for the assessment year 2006-07. The primary contention raised during the hearing was the dismissal of the appeal in limine for delay without considering the merits of the addition made by the assessing officer. The assessing officer re-opened the assessment under section 147 of the Income Tax Act for the relevant year as the assessee did not file any return of income under section 139(1) of the Act. The assessing officer proceeded to complete the assessment under section 144 of the Act, adding back the amount of ` 51,50,000 as capital gain, as the assessee did not comply with the notices issued under sections 148 and 142(1) of the Act. The appeal was dismissed by the learned Commissioner (Appeals) solely on the ground of delay without examining the merits of the addition made.

2. The learned Authorised Representative argued that there was no delay in filing the appeal as the assessment order and demand notice were served on the assessee only on 02.11.2015 after the assessee requested the assessing officer to provide a copy of the assessment order and demand notice. The assessing officer's letter dated 26.07.2017 confirmed that the assessment order sent by registered post had returned unserved, and it was served on the assessee on 02.11.2015. The Tribunal noted that the learned Commissioner (Appeals) had not specified the actual delay in filing the appeal and had presumed it to be belated based solely on the date of the assessment order. Considering the facts, the Tribunal concluded that there was no delay in filing the appeal and set aside the order of the learned Commissioner (Appeals), restoring all issues for de novo adjudication on merits by the Commissioner (Appeals) with a reasonable opportunity for the assessee to be heard.

3. The Tribunal allowed the assessee's appeal for statistical purposes, emphasizing that the dismissal of the appeal in limine for delay was erroneous. The order was pronounced on 26.12.2018, overturning the decision of the learned Commissioner (Appeals) and providing the assessee with the opportunity for a fresh adjudication on the merits of the case.