IN INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRE SIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ITA No. 852/CHD/2017 Assessment Year : 2005-06 M/s K.K. Apparels, ACIT, Circle, Village Chowkiwala, Nalagarh Solan (H.P.) Now: 68, Sarabha Nagar, Ludhiana PAN No. AADFK9883E Appellant Respondent Assessee by : Shri Tej Mohan Singh, Advocate Revenue by : Smt. Chandrakanta, Sr.DR , Date of Hearing : 05.08.2019 , Date of Pronouncement : 20.08.2019 Order Per Sanjay Garg, Judicial Member: present appeal has been preferred by assessee against order dated 18.09.2008 of Commissioner of Income Tax (Appeals), Shimla [hereinafter referred to as CIT(A) ]. 2. assessee in this appeal has raised following grounds of appeal:- 1. That Ld. Commissioner of Income Tax(Appeals) has erred in law in dismissing appeal ex-parte without ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 2 affording proper opportunity of hearing which is against Principals of Natural Justice and as such order passed is illegal, arbitrary, unjustified which merits annulment. 2. Without prejudice to above, Ld. Commissioner of Income Tax(Appeals) has erred in upholding disallowance of deduction under section 80IB claimed at 100% resulting in addition of Rs. 1,28,89,273/- without any independent reasoning which is arbitrary and unjustified. 3. That order of Commissioner of Income tax(Appeals) is erroneous, arbitrary, opposed to facts of case and is unsustainable in law. 3. appeal is barred by long limitation period of 8 years and 228 days. separate application for Condonation of Delay has been filed, wherein, it has been pleaded that order was passed by Ld. CIT(A) on 18.9.2008. That assessee firm was closed in April, 2007 and no business was conducted after April 2007. That after closure of business in April 2007, Bank of India, Chandigarh took possession and sold machinery of firm to cover its outstanding dues. That assessee had never received any copy of impugned order of CIT(A). That it was only that assessee firm received demand notice issued by DCIT Circle, Parwanoo dated 24.1.2017 and that assessee firm came to know about passing of impugned order of CIT(A). Thereafter, assessee immediately made request to office of CIT(A), Shimla at Solan vide letter ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 3 dated 24.2.2017 for issue of copy of appeal order for assessment year 2005-06, which was received on 24.4.2017. assessee thereafter immediately filed present appeal before this Tribunal. That delay, if any, in filing present appeal is not on account of any intentional negligence or willful default on part of assessee. Reiterating above submissions, Ld. Counsel for assessee has submitted that delay in filing present appeal before this Tribunal may be condoned. 4. On other hand, Ld. DR has submitted that from perusal of record, it is revealed that copy of impugned order of CIT(A) dated 18.9.2008 was dispatched to assessee by registered post on 30.09.2018 at address KK Apparels, Village Chowkiwala, Nalagarh, Distt Solan (HP) . That further as informed by Ld. CIT(A) Shimla, order was never returned back to their office undelivered. That even assessee had sought adjournment through application and also telegram received in office of CIT(A) on 16.09.2008, however, Ld. CIT(A) rejected said application for adjournment and intimation this respect was not sent to assessee vide letter dated 18.9.2008. That, thereafter, assessee never enquired about status of its appeal for assessment year under consideration despite fact that appeals of assessee for assessment years 2002-03, 2003-04 and 2004-05 were pending before ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 4 ITAT and as such assessee was reasonably supposed to make enquiries from office of CIT(A), Shimla regarding status of its appeal case for assessment year under consideration. Ld. DR, therefore, has vehemently opposed application of assessee for Condonation of Delay. 5. In rebuttal Ld. Counsel for assessee has invited our attention to letter dated 29.3.2017 from office of CIT(A) Shimla, wherein, it has been mentioned that impugned order dated 18.09.2008 was sent to assessee at following address:- KK Apparels, Village Chowkiwala, Nalagarh, Distt Solan (HP) . Ld. Counsel has further invited our attention to Form No. 35, which is opening form of appeal, wherein, in column meant for address to which notice may be sent to appellant , address of assessee has been mentioned as under:- M/s K.K. Apparels, Vill: Chowkiwala, Nalagarh, C/o 68, Sarabha Nagar, Ludhiana. Ld. Counsel, therefore, has submitted that impugned order was never sent at address mentioned in form No. 35. Further, that impugned order was allegedly sent at factory premise which was already closed down and possession was taken over by bank. ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 5 6. We have considered rival submissions. plea of Ld. DR has been that despite fact that that though order might have been sent at factory premises of assessee, however, there was negligence on part of assessee as it did not enquire about fate of its appeal for assessment year under consideration especially when appeals of assessee for other assessment years were pending before Tribunal. That under circumstances, there was no justification for condoning long delay of 8 years and 228 days in filing present appeal. However, considering entire facts and circumstances, we are convinced with submissions of Ld. Counsel for assessee that order was not sent by office of CIT(A) at correct address of assessee. Further that since assessee firm had already closed down and assets taken were over by bank and staff already retrenched, there was no proper person to look after affairs of assessee firm. Further it has also been submitted that advocate who was looking after matter namely Shri S.S. Rikhi had already expired and firm had no information of status of appeal after his death. Hence, considering above factual aspect and also considering interest of justice, we deem it fit to condone long delay in filing present appeal. We order accordingly. ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 6 7. Now coming to merits of case. Ld. Counsel for assessee, at outset, has invited our attention to impugned order of CIT(A) to submit that same is ex-parte order. As stated above, Ld. counsel for assessee had moved application for adjournment of case for said date which was also followed by telegram, however, Ld. CIT(A) rejected application and passed impugned order on same date. In our view, assessee has not been given reasonable opportunity to present its case before CIT(A). 8. In view of this, impugned order of CIT(A) is set aside and matter is restored to file of CIT(A) for decision afresh in accordance with law. Needless to say that Ld. CIT(A) will give proper opportunity to assessee to present its case. At same time, we direct assessee to promptly appear before Ld. CIT(A), as and when called for, and not to seek unnecessary adjournments. With above observations, appeal of assessee is treated as allowed for statistical purposes. O rder pronounced in Open Court on 20.08.2019. Sd/- Sd/- (N.K. SAINI) (SANJAY GARG) Vice President & Judicial Member Dated : 20.08.2019 ITA No. 852-c-2017 M/s K.K. Apparels,Ludhiana 7 ,(4 5 6 5 Copy of order forwarded to : 1. Appellant 2. Respondent 3. 7 CIT 4. 7 CIT(A) 5. 5 9 , 0 9 DR, ITAT, CHANDIGARH 6. Guard File By order, Assistant Registrar K. K. Apparels v. ACIT, Circle, Solan