AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (12) TMI 217
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....following ground nos. 2 and 3 of ITA No.1397/Kol/2014: "2. For that the Ld. CIT(A) erred in dismissing the appeal as time barred ignoring the fact that the assessment order allegedly served by affixation was not received by the appellant nor the same was served by affixation by following due process of law. 3. For that on the facts and circumstances of the case the Ld. CIT(A) erred in confirming the assessment order which was passed in gross violation of principles of natural justice." 3. Briefly stated facts are that these assessments were framed u/s. 144 read with section 147 of the Act dated 30.12.2011. The assessee preferred appeals against these assessment orders (ex parte) on 27.11.2012. According to CIT(A), these appeals were filed after a lapse of nearly 310 days. Hence, these appeals are barred in term of sec. 249 of the Act. The CIT(A), first of all, examined the assessment records and found that the assessment orders were served by way of affixation by Inspector of the Department on 06.01.2012 as is available in the assessment record. The Inspector's Report was quoted by CIT(A), which is again being quoted hereunder for ....
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....14.06.2012. In spite of it the appeal was filed on 27.11.2012. Subsequently, another notice by Speed Post was sent to him on 15.06.2012, for penalty. Subsequently, penalty u/s. 271 (1)(c) and 271(1)(b) were imposed on 26.06.2012. The penalty orders were served by Speed Post in assessee's address on 12.07.2012. A11 these taken together clearly indicates that the assessee was very well aware regarding the completion of order. However the assessee choose for whatever reason, not to comply to the notices issued and avoid receipt of notice directly at his address or through authorized representative, causing the department to serve the notice through either affixation or by post. Similar conduct was also noticed during appellate proceeding, when the assessee never received the notices directly, and the notices had to be served on persons claiming to be his relatives, by Notice server or sent by Speed Post, again to be received by others. Therefore, as the appeal has been filed belated and sufficient cause for such delay is not there the appeal is dismissed as being time barred." 5. The CIT(A) after dismissing the appeal as time barred also gone into merits of the case and decided....
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....cko, MD, DM, MNAMS, at ISDSC ward cabin no. 4 in the DEPT. OF CIINICAL GASTROENTEROLOGY & HEPATOLOGY; she had under gone investigation, blood examination, upper GI endoscopy, colonoscopy, capsule endoscopy C.T. scan & MRI whole abdomen along with enteroscopy. She under gone CXR pa view, ECG, echo cardiography, IVU, & intestinal multiple biopsy & bone densitometry. Ultimately we came to conclusion of diagnosis, she is suffering from chron's disease of intestine. which is a incurable disease & needs long run, lifelong very costly treatment, otherwise this disease prone to small intestinal cancer." In term of this, Ld. counsel for the assessee stated that no doubt the assessee received penalty notices as well as penalty was imposed but he could not concentrate on income tax matter properly. For this, he substantiated his argument that even the assessment was framed ex parte due to non-representation by the assessee for the same reason. Ld. Counsel for the assessee also stated that the assessment order was served through affixture but actually it was not received by assessee. When he came to know about the proceedings, he obtained the copy of assessment ord....
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....ns that the right becomes vested in and exercisable by the appellant. Here the assessee's appeal is delayed as alleged by CIT(A) and without admitting the appeal he has adjudicated the same on merits. Once the appeal is not admitted nothing is pending before him. A judgment of Hon'ble Bombay High Court (under the old Act of 1922) in the case of CIT Vs. Mysore Iron & Steel Works (1949) 17 ITR 478 (Bom), wherein it is held as under: "Now, the scheme under Sections 30 and 31 of the Act is fairly clear. An assessee has a statutory right to present an appeal within thirty days without any order being required from the Appellate Assistant Commissioner for admission of that appeal. But if the time prescribed expires, then that statutory right to present an appeal goes; and an appeal can only be entertained provided it is admitted by the Appellate Assistant Commissioner after condemning the delay. Therefore before an appeal could be admitted in this case, an order from the Appellate Assistant Commissioner was requisite that the delay had been condoned, and it was only on such an order being made that the appeal could b....
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....x Act. It was from the order on the preliminary point that an appeal was preferred to the Commissioner, and on those facts that Court held that it was an order under Section 31 of the old Act. But as I have pointed out earlier, in the case before us there is no question of the appeal being disposed of either on the preliminary point or on merits, because the appeal was never admitted. Then there is the case of Maharani Gyan Manjari Kuari v. Commissioner of Income-tax, Bihar and Orissa ([1944] 12 I.T.R. 59). That was a case where the assessee had failed to prefer an appeal in the prescribed form to the Appellate Assistant Commissioner of Income-tax, and the Appellate Assistant Commissioner refused to admit the appeal holding that the appeal was not in the prescribed form. The Patna High Court merely followed the earlier decision of their own Court to which I have referred and came to the conclusion that the order made by the Appellate Assistant Commissioner was an order under Section 31. We have looked in vain through this judgment to find any reason suggested why the order made by the Appellate Assistant Commissioner refusing to entertain the appeal because it....