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2016 (1) TMI 30 - ITAT DELHI

2016 (1) TMI 30 - ITAT DELHI - TMI - Condonation of delay in filing of appeal - delay of 3 years - Notice of demand u/s 156 - non serve of notice on the assessee along with the assessment order and computation form challenged - Held that:- The assessee stated in his letter dated 27th January, 2011 addressed to the Commissioner of Income Tax (A) that it was only after it received the order of the Tribunal on 30.7.2010 for the assessment years 2001-02, 2002-03 and 2003-04 the status of the appeal .....

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of the employee of the assessee. This is a self-serving document as the Chartered Accountant has not corroborated the same.

Under these circumstances, we concur with the view of the Ld. CIT(A) that the assessee could not demonstrate that, it was prevented by sufficient cause, in filing this appeal within the time stipulated under the Act. We do not find any infirmity in the order of the Ld.CIT(A).

In none of the cases as relied it has been laid down that in each and every c .....

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ate authority and dismiss the appeal of the assessee. - Decided against assessee. - ITA No: 1197/Del/2011 - Dated:- 30-9-2015 - SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER For The Appellant by : Shri C.S. Aggarwal, Sr. Advocate, Shri R.P. Mall, Advocate For The Respondent by :Shri Vikram Sahay, Sr. DR ORDER PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER This is an appeal file by the assessee directed against the order of the Commissioner of Income Tax (A) dated 28.1.2011 .....

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21.11.2006, despite the fact that, it had not been disputed that no Notice of demand had been served on assessee in respect of the said order of assessment and time to file an appeal commences with the service of notice of demand and no valid appeal could be filed without a notice Of) demand. 3. That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that no appeal could have been filed without a notice of demand and in the absence of notice of demand it was advised by th .....

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oner of Income Tax (Appeals) has further failed to appreciate that merely because the assessee didn t request the AO to serve a copy of notice of demand u/s 156 prior to 13.08.2010, could not be regarded as a valid ground for holding that there was a delay in filing appeal and further the purported delay if any occurred could not be condoned. 5. That the learned Commissioner of Income Tax (Appeals) failed to appreciate that the Apex Court in the case of Collector, Land Acquisition vs Mst. Katiji .....

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w as had been held by Hon ble ITA T and Hon ble HC for the preceding years where similar additions made have been deleted, and as such the addition made of ₹ 2,33,91,260/- as interest income ought to have been deleted . 2. Ld. CIT(A) had dismissed the appeal of the assessee by rejecting the application for condonation of delay in filing of the appeal by 47 months. 3. Aggrieved the assessee is in appeal. 4. Ld. Counsel for the assessee Shri C.S. Aggarwal, Senior Advocate, submitted that : a .....

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orm No. 35 and requires that this should be accompanied by, the order appealed against and the notice of ; e) The period to file the appeal should be taken, as an when notice of demand u/s 156 of the Income Tax Act, 1961 is served and that such a notice of demand has not been served till date, despite request made to the AO on 13.8.2010; f) The company executive Shri R.K. Goel filed a duly sworn affidavit confirming these facts that the delay of 45 months was caused on account of sufficient caus .....

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tributed to the assessee for not filing the appeal in time. i) That the assessee had a bonafide belief that the appeal can be filed, only on receipt of the demand notice and such bonafide belief was due to a professional opinion and hence there is reasonable cause for condonation of delay. He relied on the following case laws :- 1. Surya General Traders vs. Commercial Tax Officer of High Court of Andhra Pradesh 2. Church of our lady of Grace vs. Commissioner of Income Tax reported in 34 SOT 315 .....

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Engineering P. Ltd. vs. CIT reported in 221 Taxmann 209 (Bom) 12. Improvement Trust, Ludhiana vs. Ujagar Sing & Ors. Civil Appeal No. 2395 of 2008 Supreme Court Judgment dated 9th June, 2010 13. M/s. Sartorious Mechatronics India (P) Ltd. vs. ACIT ITA Nos. 982 to 984/Bang/2013 dated 27.3.2015 5. Ld. DR Shri Vikram Sahay on the other hand opposed the contention of the Ld. Counsel for the assessee and submitted that, this bench of the Tribunal had directed the department to file evidence rega .....

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that copy of the assessment order along with the computation form and demand notice showing nil demand was dispatched by speed post on 17.11.2006 to the assessee. He argued that these papers are being filed on the directions of the bench and the entire base on which the assessee rested its case is demolished by these papers. He further submitted as follows :- a) At page 43 of the assessee s paper book a letter dated 12th August,2006 is addressed to Deputy Commissioner of Income Tax requesting fo .....

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igent and hence not demonstrated reasonable cause. d) The affidavit filed by one of the officer of the company Shri R.K. Goel, Senior Manager mentioned that Shri Mahesh Gupta Chartered Accountant had advised the company to await for the notice of demand and whereas there is no independent confirmation from Shri Mahesh Gupta. e) That the assessee states that he has not received notice of demand and that an appeal cannot be filed without a notice of demand and that he has asked for the notice of d .....

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typed, but was actually, 12th August, 2010 and that this was a typographical error. He submitted that the claim of the D.R. that a notice of demand u/s 156 was issued to the assessee by speed post is not believable. He argued that the acknowledgement which is photocopied on the reverse of notice of demand u/s 156 is no evidence at all. He ridiculed the papers filed by the department and submitted that these do not help the case of the department. He pointed out that in the case of M/s. Sartoriou .....

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case law cited, we hold as follows. 8. The revenue in this case has stated that the notice of demand u/s 156 was served on the assessee along with the assessment order and computation form. Evidence of dispatch of the same through speed post on 17.11.2006 is produced before us. The assessee denies the receipt of the same, but is unable to controvert the documentary evidence produced by the revenue. When the document is sent by speed post and when the same is not returned to the sender by the po .....

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to be rejected. Thus the entire basis on which the assessee based his argument for condonation of delay is devoid of merit. 9. Even otherwise if it has to be considered that notice of demand has not been served on the assessee, the assessee filed a letter dated 12th August, 2006 on 18th August, 2010 before AO, requesting for notice of demand. The submission of the Ld. Senior Counsel that the date 12th August, 2006 is a typographical error cannot be accepted. This claim is not supported by any e .....

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