2019 (12) TMI 826 - AT - Income Tax

Penalty u/s 271(1)(c) - application for condonation of delay - HELD THAT - Once sufficient material is available on record and assessee made a request for condonation of delay in statement of facts, that is sufficient for Ld. CIT(A) to deal with the submission of the assessee whether to the condone the delay in filing the appeal or not ? Therefore, such is not a relevant reason to reject the claim of assessee. Considering the above discussion, it is clear that appeal of assessee was filed within the period of limitation. Therefore, there is no occasion for the CIT(A) to hold that appeal of assessee is time barred and should not be admitted to decide on merits. In this view of the matter, we set aside the impugned order of the CIT(A) and hold that appeal filed by the assessee before the Ld. CIT(A) is within the time. Accordingly, appeal of assessee is restored to the file of CIT(A) with a direction to re-decide the appeal of assessee on merits and in accordance with law, by giving reasonable, sufficient opportunity of being heard to the Assessee and the A.O. Accordingly, appeal of Assessee is allowed for statistical purposes.

Summary

Issues:
1. Timeliness of filing the appeal before the Ld. CIT(A).
2. Validity of the service of the assessment order on the assessee.
3. Rejection of claim due to lack of application for condonation of delay.

Analysis:
1. The appeal by the Assessee was directed against the Order of the Ld. CIT(A)-37, New Delhi, for the A.Y. 2009-2010. The Ld. CIT(A) dismissed the appeal as time-barred due to the absence of a specific application for condonation of delay. The Assessee contended that the appeal was filed within the period of limitation, supported by documentary evidence. The Counsel argued that the final assessment order was not served to the Assessee despite requests, leading to the delay in filing the appeal. The Revenue, however, relied on the service through affixture and urged for dismissal of the appeal.

2. The Tribunal analyzed the facts and found that the final assessment order was received by the Assessee on 19.12.2013, within the period of limitation. The Revenue claimed service through affixture on 30.05.2013, but failed to provide evidence of attempts made for personal service or through registered post. The Tribunal noted that the address on record was correct, and the Assessee had requested a copy of the assessment order within the limitation period. Since the order was received late, the Tribunal held that the appeal was filed within the prescribed time.

3. The Ld. CIT(A) rejected the Assessee's claim due to the absence of an application for condonation of delay and affidavit. However, the Tribunal observed that the statement of facts clearly mentioned the request for condonation of delay, which should have been sufficient for the Ld. CIT(A) to consider. The Tribunal emphasized that technicalities should not hinder the consideration of substantial issues. Therefore, the Tribunal set aside the Ld. CIT(A)'s decision, holding that the appeal was timely filed and directed a re-decision on merits.

In conclusion, the Tribunal allowed the appeal of the Assessee for statistical purposes, emphasizing the importance of considering the substance of the case over procedural technicalities.