AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 532
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....aken as the date on which the assessment orders were handed over to the ex-employee of M/s. Al Zarafa Travels and Manpower Consultants (P) Ltd., the CIT(A) ought to have considered the fact that the delay in filing the appeals was on account of reasons beyond the control of the appellant. 4. The basic purpose of appeals is to provide justice to assesses. By not condoning the delay on valid grounds, the CIT(A) has acted against the legislative intent behind appellate proceedings, that too in a case where assessments have been made ex parte. 5. The appeals were dismissed in haste by the CIT(A) ignoring the appellant's request to keep the proceedings in abeyance till the disposal of appeals by the ITAT in the case of M/s. Al Zarafa Travels and Manpower Consultants (P) Ltd. against order of CIT(A) for non-condonation of delay in filing the appeal on similar grounds. 6. The CIT(A) ought to have considered the decision of the Hon'ble Supreme Court n Collector, Land Acquisition, Anantnag and Another vs. MST. Katiji & Others (2002- TIOL-44-SC-LMT). 7. The CIT(A) ought to have considered the fact that the assessment orders were passed ex parte u/s. 144 of....
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....dated 29.01.2019. In response to the above, the assessee filed a reply stating:- "At the time of assessment proceedings and serving the assessment orders, appellant was a non resident residing outside India and could not travel to India due to travel ban imposed by UAE Govt on the request of Govt agencies in India. Subsequently, the Hon. High Court of Kerala granted permission to the appellant to travel to India. On 14th March, 2018, appellant had to appear in the CBI Court, Ernakulam in connection with getting his passport back as per directions of the Hon. High Court of Kerala. In the CBI Court, an order under section 230 against the appellant was handed over to the court in the form of a petition. Only at this point appellant was aware about the assessments. The assessment order was handed over to the office of Al Zarafa Travels and Manpower Consultants, Cochin, alleging that appellant is the managing director of the company, whereas appellant had resigned directorship on 01.10.2009 and was not associated with the company. In the assessment orders also, address of the appellant was written as the address of the company, whereas as per PAN records, the address of the app....
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....t the TRO had served the notice of demand in I.T.C.P. 1 on 06.03.2017 itself at the address as per PAN by way of affixture. The assessee still had not bothered to respond to the demand notice. Moreover, the department's letters including the order 230 sent to the address as per PAN has been returned by the postal authorities as unclaimed. The assessee has also currently given the address of his chartered accountant as the address for communication. Therefore, it may appear apparent that the claim of the assessee in this regard is only an afterthought and not the real reason as it is clear that the he was not using the PAN address as seen from the above. In respect of point (ii), the assessee's claim that he came to know about the assessment orders only on 14.03.2018, when the order u/s 230 was served on him is absolutely false. It is submitted that in respect of penalty proceedings initiated u/s 271(1)(c)/271AAB, the assessee's erstwhile authorized representative had replied to this office by email requesting for adjournment on 26.05-2017. It is pertinent to mention the assessee himself has accepted the letter dated 26.05.2017, as the same has been pla....
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....h against assessment orders of the AO u/s 153A rws 144 and Penalty orders 271(l)(c), for AY 2009-10, 2010-12, 2012-13, 2013-14, 2014-15 & 2015-16, being invalid due to reasons discussed above, were thus dismissed by CIT(A). 4. Against this, the assessee is in appeal before us. Before us, the assessee has filed an affidavit dated 19/06/2019 stating as follows: "A search u/s. 132 of the Income Tax Act. 1961 was conducted on 27.03.2015 against me at the premises of the company M/s. Al Zarafa Travels and Manpower Consultants (P) Ltd alleging that I was the Managing Director of the said company. I was a Non-resident and was settled outside India. At the time of assessment proceedings and serving of the assessment orders, I was residing outside India and was unable to travel to India due to travel ban imposed by the UAE Government upon request from Government Agencies in India. Subsequenly, I approached the Honourable High Court of Kerala seeking permission to return to India and the High Court granted me permission to come to India and surrender before the investigation agencies. On 14lh March. 2018, I had to appear before the CBI Court, Emakulam in connection with ....
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.... on 31.05.2017, I was requested to collect the orders imposing penalty on Sri Varughese M. Uthup, which also I obeyed and collected the same on 31.05.2017. Since 1 had discontinued the services with the company Al Zarafa Travels and Manpower Consultants (P) Ltd after the closure of the company on 31.03.2015, 1 retained the said assessment orders and orders imposing penalty with me as I did not have the contact details of Sri. Varughese M. Uthup. I was not aware of the relevance and importance of these documents. On 15.02.2017, I handed over the assessment orders to the erstwhile Chartered Accountant of the company, CA. James Thomas. Again, on 01st July, 2017, I handed over the penalty orders also to CA. James Thomas. On both the occasion, Chartered Accountant James Thomas advised me to contact Sri. Varughese M. Uthup. However, since Sri. Varughese M. Uthup was out of the country, 1 could not contact him. On 13.03.2018, Sri. Varughese M. Uthup contacted me and asked me whether I had received any communication from the Income Tax Department. I appraised him about the fact that the assessment orders and penalty orders were handed over to Chartered Accountant Sri. Jam....
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....reasons for the delay in filing the appeal. There is no dispute in this case that the original assessment order was passed ex parte u/s. 144 of the I.T. Act and this was received by the assessee's ex-employee, namely Shri Paul Varghese on 31/12/2016 as per his sworn affidavit dated 15/01/2019. It was explained by the ex-employee of the Company, Shri Paul Varghese that after the search initiated by the Income Tax Department at the premises of the company on 27.03.2015, he stopped attending the company since the business of the company was closed down. On 31.12.2016, a staff of the Income Tax Department contacted him over telephone and requested him to collect some documents relating to the assessee-company which is said to be the assessment order. Thereafter, Mr. Paul Varghese went to the Railway station at Ernakulam Junction for collecting the assessment order from the staff of the Department. To that extent, there is no dispute that the assessee's ex-employee had received the assessment order from the staff of the IT Department. The Department has not filed an counter affidavit in this regard. Shri Paul Varghese handed over the assessment order to the assessee's erstwhile....
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....he course of hearing, it was submitted that M/s Al-Zarafa Travels and Manpower Consultants Pvt. Ltd had decided to file appeals against the assessment and penalty orders passed. In the meantime, Smt. Susan Thomas's husband, Sri. Varughese M. Uthup had to appear in a court relating to his matter on 14.03.2018. On knowing about the demands, the assessee contacted one of the employees of the assessee-company who informed that the assessment orders were handed over to the erstwhile Chartered Accountant, Shri James Thomas of the company. Smt. Susan Thomas's husband Shri Varughese M. Uthup received the assessment orders from him only on 13.03.2018. On receipt of the order, the managing director was contacted and was requested to file appeal against the order but no action was taken by him. In view of this, Smt. Susan Thomas took the initiative to file the appeal. But. for filing the appeal, Digital Signature was mandatory. To get Digital Signature, PAN was also mandatory. Hence, she had to apply for PAN, get PAN and then apply for Digital Signature. All this resulted in delay of filing the appeals before the CIT(A). 8.3 Therefore, we have to consider whether the assessee's f....
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....tice on technical grounds but because it is capable of removing injustice and is expected to do so. 8.5 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. Moreover, no counter-affidavit was filed by the Revenue denying the reasons advanced by the assessee. It is not the case of the Revenue that the appeal was filed deliberately with delay. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constitution, the Go....
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....sion that the appeal for the AY 2006-2007 was also filed by that Chartered Accountant in Cochin. It was also stated that the issue in all these appeals were covered in favour of the assessee by the order of the High Court of Kerala for the assessment years 2005-06 to 2008-09. The nonfiling of the appeal was noted only when the Assessing Officer had enquired about the status of the case and payment of tax in the last week of May, 2017. The assessee was under the impression that the Chartered Accountant had already made arrangements for filing the appeal and as so many appeals were pending before the ITAT, he was under the impression that the appeal for this year also was filed. It was submitted that the non-filing of the appeal was due to an inadvertent omission on his part in handing over the file to the AR at Cochin. Hence, it was prayed that the delay of 2819 days in filing the appeal may be condoned. As such, this Tribunal condoned the above delay of 2819 days. 8.8 The Madras High Court in the case of Sreenivas Charitable Trust (supra) held that no hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic a....
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....cient cause for not filing the appeal within the period of limitation, the delay has to be condoned irrespective of the duration/period. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay in filing the appeals before the CIT(A). 8.9.1 In case the delay was not condoned, it would amount to legalise an illegal and unconstitutional order. The power given to the Tribunal is not to legalise an injustice on technical ground but to do substantial justice by removing the injustice. The Parliament conferred power on this Tribunal with the intention that this Tribunal would deliver justice rather than legalise injustice on technicalities. Therefore, when this Tribunal was empowered and capable of removing injustice, in our opinion, the delay in filing the appeals before the CIT(A) has to be condoned and the appeals of the assessee have to be admitted and disposed of on merit. 8.9.2 In view of the above, we condone the delay in filing the appeals before the CIT(A) and remit the issue to the file of the CIT(A) to decide the issue on the merit of the additions made by the Asses....