M/S. SHREE MITRA GYAN SHIKSHA SAMITI, Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, Jaipur

ITA 1023/JPR/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6124 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DHK
• Assessee Lawyers: K L MOOLCHANDAN I

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 1023/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12. M/S. SHRI MITRA GYAN SHIKSHA SAMITI, SEC.9, MANDIR MARG, PATEL MARG, MANSAROVAR, JAIPUR. CUKE VS. THE ACIT, CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAEAS 4510 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI K.L.MOOLCHANDANI (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.05.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/05/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 11 TH OCTOBER, 2017 OF LD. CIT (A)-3, JAIPUR FOR THE ASSESSMENT YE AR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) HAS FACTUALLY AND LEGALLY ERRED IN DISMISSING THE A PPEAL AT THE ADMISSION STAGE HOLDING THAT THE APPEAL WAS FILED 8 MONTHS LATE WITHOUT VERIFYING THE CORRECT FACT THAT THE APPEAL WAS FILED ON 26.9.2014 AFTER RECEIVING THE ASSESSMENT ORDER, DEM AND NOTICE, ETC. ON 24.9.2014. THUS, THERE WAS NO DELAY IN FILING T HE APPEAL WARRANTING APPLICATION FOR CONDONATION OF DELAY. THUS, THE AP PEAL ORDER SO PASSED IS BAD IN LAW AND THE SAME DESERVES TO BE QUASHED S UMMARILY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT (A) HAS FACTUALLY AND LEGALLY ERRED IN TREATING THE APPELLANT IN DEFAULT OF 2 ITA NO. 1023/JP/2017 SHRI MITRA GYAN SHIKSHA SAMITI, JAIPUR. NOT ATTENDING THE HEARING DESPITE OF NUMBER OF FIXA TION NOTICES ISSUED. IN FACT, NOT A SINGLE NOTICE OF HEARING WAS RECEIVE D BY THE APPELLANT. IN THE CIRCUMSTANCES, THE APPELLANT WAS PREVENTED BY R EASONABLE CAUSE FROM NOT ATTENDING THE HEARING ON THE GIVEN DATES. THE LD. CIT (APPEALS) HAS FAILED TO APPRECIATE THIS FACT. IN TH E CIRCUMSTANCES, THE APPEAL ORDER SO PASSED IS FACTUALLY INCORRECT AND T HE SAME DESERVES TO BE QUASHED SUMMARILY. 3. THE APPELLANT CRAVES TO ADD, AMEND OR WITHDRAW A NY OF THE GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HE ARING OF APPEAL. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER ON THE GROUND THAT THE ASSESSEE HAS FILED THE APPEAL BELATEDLY AND HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DE LAY. THUS THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINI. THE RELEVANT PAR T OF THE ORDER OF LD. CIT (A) IN PARA 3 IS AS UNDER :- 3. THE HEARINGS IN THIS CASE WAS INITIALLY FIXED FOR 21.12.2016 BUT ON THE APPOINTED DATE NEITHER APPELLANT ATTEND NOR FILED ANY ADJOURNMENT LETTER. THE NOTICE AGAIN ISSUED FIXING FOR HEARING ON 03.07.2017, BUT ON THE APPOINTED DATE NEITHER APPEL LANT ATTEND NOR FILED ANY ADJOURNMENT LETTER. THE CASE AGAIN FIXES 20.09.2017, BUT ON THE APPOINTED DATE NEITHER APPELLANT ATTEND NOR FIL ED ANY ADJOURNMENT LETTER. THE NOTICE AGAIN ISSUED FIXING FOR HEARING ON 10.10.2017, BUT ON THE APPOINTED DATE NEITHER APPELLANT ATTEND NOR FIL ED ANY ADJOURNMENT LETTER. UNDER THE CIRCUMSTANCES, IT APPEARS THAT TH E APPELLANT DOES NOT MADE ANY APPLICATION FOR DELAY OF CONDONATION OF AP PEAL AT THE TIME OF FILING APPEAL. THE A/R OF THE APPELLANT NEITHER ATT ENDED NOR FILED ANY REASON FOR DELAY IN FILING THE APPEAL ON VARIOUS DA TE FIXED FOR HEARING. IT SHOW THAT APPELLANT IS NOT SERIOUS ABOUT THE APP EAL. THEREFORE, APPEAL IS DISMISSED AT THE ADMISSION STAGE. 3 ITA NO. 1023/JP/2017 SHRI MITRA GYAN SHIKSHA SAMITI, JAIPUR. 3. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT S INCE THE ASSESSEE DID NOT RECEIVE ANY OF THE NOTICES ISSUED BY THE LD. CIT (A ), THEREFORE, THE ASSESSEE COULD NOT EXPLAIN THE REASONS FOR FILING THE APPEAL BELAT EDLY. HE HAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAS TAKEN THE DATE OF FILING AS 12 TH DECEMBER, 2014 WHEREAS THE ASSESSEE FILED THE APPEAL ON 26 TH SEPTEMBER, 2014. HE HAS PRODUCED THE COPY OF FORM NO. 35 HAVING SEAL OF THE CIT (A) DATED 26 TH SEPTEMBER, 2014. THUS THE LD. A/R HAS SUBMITTED THAT THE LD. CIT (A) HAS PROCEEDE D ON THE BASIS OF WRONG FACTS AND FURTHER THE APPEAL OF THE ASSESSEE WAS FILED WE LL IN TIME AS THE ASSESSEE HAS STATED IN FORM NO. 35 THAT THE ASSESSMENT ORDER WAS RECEIVED BY THE ASSESSEE ONLY ON 24 TH SEPTEMBER, 2014. HENCE THE LD. A/R HAS PLEADED THA T THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PUT ITS CASE BEFORE THE LD. CIT (A). 3.1. ON THE OTHER HAND, THE LD. D/R HAS VEHEMENTLY OBJECTED TO THE APPEAL OF THE ASSESSEE AND SUBMITTED THAT DESPITE VARIOUS OPPORTU NITIES GIVEN BY THE LD. CIT (A), THE ASSESSEE DID NOT RESPOND TO ANY OF THE NOTICES ISSUED BY THE LD. CIT (A). FURTHER THE ASSESSEE IS MISUSING THE PROCESS OF LAW AND TAK ING ADVANTAGE OF ITS OWN WRONG. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE APPEAL WAS DISMISSED BY TH E LD. CIT (A) IN LIMINI BEING BARRED BY LIMITATION. PRIMA FACIE WE NOTE THAT THE ASSESSEE FILED THE APPEAL BEFORE LD. CIT (A) ON 26 TH SEPTEMBER, 2014. HOWEVER, THE LD. CIT (A) HAS PROC EEDED BY CONSIDERING THE DATE OF FILING OF APPEAL AS 12 TH DECEMBER, 2014. THUS IT APPEARS THAT THE WRONG DATE OF FILING WAS CONSIDERED BY THE LD. CIT (A) WHILE DISMISSING THE APPEAL. HOWEVER, WITHOUT EXPRESSING ANY VIEW ON TH E ISSUE OF DELAY IN FILING THE APPEAL AS WELL AS ON THE MERITS OF THE CASE, WE FIN D IT PROPER AND REASONABLE IF THE 4 ITA NO. 1023/JP/2017 SHRI MITRA GYAN SHIKSHA SAMITI, JAIPUR. ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT I TS CASE BEFORE THE LD. CIT (A). ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF LD. CIT (A) AND REMIT THE MATTER TO THE RECORD OF THE LD. CIT (A) FOR FRESH ADJUDICATIO N AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. WE MAY CLARIF Y THAT IN CASE THE ASSESSEE FAILS TO APPEAR BEFORE THE LD. CIT (A), THE OPPORTUNITY GRAN TED BY US SHALL STAND VACATED/WITHDRAWN. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/05/20 18. SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/05/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MITRA GYAN SHIKSHA SAMITI, JAIP UR. 2. IZR;FKHZ@ THE RESPONDENT-THE ACIT CIRCLE-1, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1023/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR 5 ITA NO. 1023/JP/2017 SHRI MITRA GYAN SHIKSHA SAMITI, JAIPUR.