Northern Railways Primary Cooperative Bank Limited, Lucknow V. ITO, Lucknow

ITA 141/LKW/2011

• Counselvise Citation: 14123714 RSA 2011
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SWARUP
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.141(LKW.)/2011 A.Y.: 2005-06 NORTHERN RAILWAYS PRIMARY VS. THE ITO- II(2), CO-OPERATIVE BANK LTD., LUCKNOW. 19A, VIDHAN SABHA MARG, LUCKNOW. PAN AAALN0029L (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SMT. SHEFALI SWARUP, D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-I, LUCKNOW DATED 5.1.2011 CONFIRMING THE PENALTY OF RS.1 LAC IMPOSED UNDER SECTION 271B OF THE INCOME-TAX ACT,1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2005-06. 2. IT IS OBSERVED THAT THE REGISTRY OF THIS TRIBUNAL HAS RAISED AN OBJECTION THAT THE APPEAL FILED BY THE ASSESSEE IS LATE BY ONE DAY. THE ORDER UNDER APPEAL WAS RECEIVED BY THE ASSESSEE ON 21 ST JANUARY, 2011. HOWEVER, THE APPEAL WAS FILED ON 23.3.2011. AS PER THE PROVISIONS OF LAW, THE APPEAL SHOULD HAVE BEEN FILED WITHIN 60 DAYS. HOWEVER, THE APPEAL FILED ON 23 RD MARCH,2011 IS LATE BY ONE DAY. IN THE APPLICATION FOR CONDONATION OF DELAY, IT IS STATED THAT THE APPEAL PAPERS WERE GIVEN TO A PARTICULAR STAFF OF THE BANK FOR 2 FILING THE APPEAL BEFORE THE TRIBUNAL ON 21 ST MARCH, 2011, BUT DUE TO SUDDEN ILLNESS OF HIS SON, HE COULD NOT FILE THE APPEAL PERSONALLY AND HAD SENT THE APPEAL PAPERS BY COURIER ON 23 RD MARCH, 2011, HENCE, THE DELAY OF ONE DAY HAS OCCURRED. FROM THE ABOVE REASONS, WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME BEFORE THE TRIBUNAL. THUS, TAKING A LIBERAL VIEW IN THE MATTER, WE CONDONE THE DELAY OF ONE DAY IN FILING OF THE APPEAL. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS SENT AN APPLICATION FOR ADJOURNMENT, WHICH HAS BEEN REJECTED BEING WITHOUT ANY REASONABLE CAUSE. WE, THEREFORE, PROCEED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS, AFTER HEARING THE LD.D.R. AND CONSIDERING THE MATERIAL ON RECORD. 4. AS REGARDS THE MERITS OF THE CASE, WE FIND THAT THE LD.CIT(A) HAS PASSED AN EX PARTE ORDER WITHOUT HEARING THE ASSESSEE OR ITS DULY AUTHORISED REPRESENTATIVE. AFTER PERUSING THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT THE LD.CIT(A) SHOULD HAVE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT 3 PROPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE LD.CIT(A) TO DECIDE THE APPEAL PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 1.6.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT JUNE 1ST ,2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.