Once the matter was decided in a earlier appeal than new appeal cannot on the same subject be raised before the same appellate authority

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH ‘E’ NEW DELHI.

BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL

I.T.A. No.1524(Del)/2011

Assessment year: 1996-97

Okara Agro Industries Limited,

1557, first floor, Church Gate,

Kashmere Gate, Delhi.

(Applicant)

Vs.

Assistant Commissioner of

Income-tax, Circle 2(5),

New Delhi.

 (Respondent)

Appellant by: Shri Sanjay Mehra, C.A.

Respondent by: Shri Raj Tandon, CIT, DR

Date of Hearing: 16.02.2012

Date of Pronouncement: 16.02.2012.

ORDER

PER K.G. BANSAL : A.M

The facts of the case are that the assessee-company filed its return on 31.10.1996 declaring total income of Rs. 5,01,190/-. Assessment u/s 143(3) was completed on 31.03.1999 at total income of Rs. 31,72,33,820/-. The assessee filed appeal against this order before the CIT(Appeals)-VIII, New Delhi. He disposed off the appeal on 31.03.2000 in appeal no. 627/1999-00. The appeal was dismissed by making following observations:-

“2.1 Aggrieved by the order the appellant has filed the present appeal. The objections of the appellant are contained in the statement of facts filed along with the grounds of appeal. In the course of appellate proceedings, Shri Sanjiv Wadhera, AR of the appellant, was asked to produce supporting documents in support of the returned income. The hearing was fixed on 24.2.2000. On the aforesaid date nobody on behalf of the appellant appeared nor was any petition for adjournment filed. However, Shri Wadhera, vide the letter dated 29.02.2000, informed this office that due to professional engagement he could not attend on 24.2.2000 and requested that the case be adjourned to 8.3.2000. Accordingly, the case was refixed on 8.3.2000. On 8.3.2000 again there was non compliance by the appellant. Shri Wadhera vide the letter dated 13.3.2000 informed this office that the records were being arranged and requested that the case be adjourned to 21.3.2000. Accordingly, the hearing was fixed on 21.3.2000. On the aforesaid date again no body appeared on behalf of the appellant nor was any petition for adjournment filed. On perusal of the appeal records, I find that the appellant has been seeking time on one pretext or the other. At the assessment state also it had failed to provide any cooperation to the AO. Despite a number of opportunities afforded by the AO, the appellant could not substantiate the ‘unsecured loans’, ‘sundry creditors’ and various expenses debited in the profit and loss account. At the appeal stage also the appellant has failed to furnish any supporting material and documents in support of its claim. Taking into consideration the background of the case and the totality of the facts, I hold that the appellant has no material to substantiate its claim and that the additions made by the AO on account of ‘unsecured loans’, ‘sundry creditors’ and various expenses debited in the profit and loss account are justified. No interference in the assessment order is clled for.”

2. The assessee moved one more appeal on 11.11.2009 against this order before the CIT(Appeals)-XVIII, New Delhi. It appears that the ld. CIT(Appeals) was not made aware that the appeal against this order had earlier been filed which had been dismissed by the CIT(Appeals)-VIII, New Delhi. However, he also dismissed the appeal in limine by mentioning that the assessee has not been able to prove that the notice of demand was served after more than 10 years. Thus, the delay in filing the appeal was not condoned. For the sake of ready reference, paragraph no. 4 of this order is reproduced below:-

“4. Further, I find that although the assessment order and the demand notice are dated 31.03.1999, the present appeal as per record has been filed with the ld. CIT(A)-XVI, New Delhi (from whom it has been received on transfer by this office vide CCIT, Delhi’s order F. No. Addl. CIT/Coord/Juris/Appeals/09-10/9715 dated 06.11.2009) only on 15.04.2009 which is more than 10 years after passing the assessment order. In the appeal memo in Form no. 35, the date of service of the demand notice is mentioned 20.03.2009. However, no proof service after such long period of time is filed with the appeal memo. The certified true copy of demand notice filed with appeal memo also does not bear any date of issue of such certified copy by the authority. As per the provisions of section 249 of the Act, the appeal is required to be filed within 30 days of the service of demand notice. In this case, the appellant has not furnished any proof to substantiate delayed service of the demand notice by more than 10 years. As such the appeal is out of time. Further as per record no application has been made by the appellant for condonation of delay as per proviso to section 249 of the Act.”

3. When these facts were brought to the notice of the ld. counsel for the assessee, he fairly submitted that the second appeal could not have been filed against the same order when the first appeal had already been dismissed by the ld. CIT(Appeals). On the other hand, the ld. CIT, DR submitted that the first appeal against the assessment order had been decided and, therefore, the second appeal filed belatedly before the ld. CIT(Appeals) is non-est.

4. We have considered the facts of the case and submissions made before us. The appeals filed before the Commissioners (Appeals) are in respect of the same order and subject matter of the appeals is also the same. As the earlier appeal had been decided, the assessee cannot agitate the same matter again before the same appellate authority. Accordingly, we agree with the ld. CIT, DR that the appeal before us in non-est.

5. In the result, the appeal is dismissed.

                                            Sd/-                             Sd/-

                                 (Raj Pal Yadav)             (K.G. Bansal)

                                  Judicial Member       Accountant Member

SP Satia:

Copy of the order forwarded to:-

Onkara Agro Industries Ltd., New Delhi.

ACIT, Co. Circle 2(5), New Delhi.

CIT(A)

CIT,

The D.R., ITAT, New Delhi.                                                      Assistant Registrar.