Idcol Rolling Mills Ltd, Sambalpur V. ACIT, Sambalpur

ITA 153/CTK/2011

• Counselvise Citation: 15322114 RSA 2011
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 02-08-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 21-03-2011
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: S S PODDARNIRANJAN KEDIAARS
• Keywords: Principle of natural justice; Procedural lapse; Condonation of delay

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 153/CTK/2011 (ASSESSMENT YEAR 2004 - 05) IDCOL ROLLING MILLS LTD., AT/P./O. HIRAKUD, DIST. SAMBALPUR, PAN: AABFL 1847 G VERSU S ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), SAMBALPUR (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI S.S.PODDAR/NIRANJAN KEDIA,ARS FOR THE RESPONDENT SHRI A.BHATTACHARJEE, DR DATE OF HEARING : 02.08.2011 DATE OF PRONOUNCEMENT : 12.08.2011 ORDER SHRI K.S.S.PRASAD RAO, JM : THIS APPEAL IS FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) DT.29.12.2010 FOR THE ASSESSMENT YEAR 2004 - 05 IN THE CASE OF THE ASSESSEE. 2. THE ASSESSEE HAS RAISED THE FOLLOWING ISSUES. 1. THAT THE ASSESSMENT ORDER U/S.143(3) PASSED BY THE LEARNED ASSESSING OFFICER AS WELL AS THE APPELLATE ORDER PASSED BY THE LEARNED CIT(APPEALS), CUTTACK IS UNJUSTIFIED, ARBITRARY, EXCESSIVE, CONTRARY TO EVIDENCES AND BAD IN LAW. 2. THAT THE LEARNED AS SESSING OFFICER AS WELL AS CIT(APPEALS) HAS NOT PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE WITH ALL EVIDENCES. 3. THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE CONDONATION OF DELAY PETITION WITHOUT APPRECIATING THE FACTS AND CIR CUMSTANCES OF THE ASSESSEE. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE AUTHORITIES BELOW HAS ERRED IN MAKING/UPHOLDING FOLLOWING ADDITIONS / DISALLOWANCES: ITA NO.153/CTK/2011 2 5. THAT THE AUTHORITIES BELOW HAVE ERRED IN INITIATING THE PENALTY PROCEEDING S U/S. 271(1) (C ). 6. THAT THE LEARNED AUTHORITIES BELOW WOULD HAVE PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRODUCE/EXPLAIN ITS CASE WITH PROPER EVIDENCES. 7. THAT THE LD. CIT(A) WOULD HAVE CONDONED THE DELAY IN FILING OF APPEAL IN VIEW OF TH E TOTAL SHUT DOWN SITUATION PREVAILING IN THE ASSESSEES PLANT. 8. THAT THE AUTHORITIES BELOW WOULD NOT HAVE MADE THE AFORESAID ADDITION/DISALLOWANCE. 9. THAT THE AUTHORITIES BELOW WOULD NOT HAVE INITIATED THE PENALTY PROCEEDINGS U/S. 271(1) OF THE I.T . ACT, 1961. 10. THAT THE AUTHORITIES BELOW WOULD HAVE ACCEPTED THE RETURNED INCOME. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE ASSESSEE AND THEIR LEGAL IMPLICATIONS. 4. DURING THE COURSE OF HEARING, THE LEARNED AR OF THE ASSESSEE HAS VEHEMENTLY ARGUED ON THE ASPECT OF NON - CONDONATION OF DELAY, AS THERE WAS UNAVOIDABLE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A) INSPITE OF HAVING ESTABLISHED BEFORE HIM BY PLACING COGENT EVIDENCE. ADVERTING TO THE FACTS FOR BELATED FILING O F THE APPEAL, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE COMPANY WAS A PUBLIC SECTOR UNDERTAKING WHOLLY OWNED BY INDUSTRIAL DEVELOPMENT CORPORATION OF ORISSA LTD., AND THE SAME HAD BEEN SOLD TO A PRIVATE COMPANY UNDER THE DISINVESTMENT PR OGRAMME OF THE GOVERNMENT. DUE TO PRIVATIZATION, THE LABOUR UNION HAD STOPPED THE OPERATIONS OF THE ASSESSEE COMPANY AND THE UNREST WAS GOING ON SINCE LONG. ENTIRE ACTIVITIES OF THE COMPANY HAD BEEN UNDER SUSPENSION BECAUSE OF LABOUR UNREST AND OTHER RELAT ED PROBLEMS. APART FROM THAT THE ADMINISTRATIVE STAFF OF THE COMPANY WAS ALSO HAVING DISPUTES WITH THE MANAGEMENT AND FOR THIS REASON THEY WERE ALSO ON STRIKE. THAT RESULTED IN ITA NO.153/CTK/2011 3 STOPPAGE OF ADMINISTRATIVE ACTIVITIES TOTALLY AND IN SUPPORT OF THAT THE ASSESS EE HAS PLACED DOCUMENTS BEFORE THE CIT(A). WHILE SO, THE ASSESSMENT U/S.143(34 WAS COMPLETED ON 13.10.2006 AND THE ASSESSMENT ORDER WAS SENT TO THE ASSESSEES ADDRESS BUT DUE TO LABOUR AND EMPLOYEES UNREST THE SAME COULD NOT REACH TO THE RIGHT PERSON AND L OST ALSO. IN JANUARY, 2008 THE ASSESSEE GOT THE INFORMATION THAT THE ASSESSMENT ORDER HAS NOT BEEN RECEIVED BY THE MANAGEMENT TILL DATE. HENCE, THE ASSESSEE HAS APPLIED FOR THE CERTIFIED COPY OF THE ASSESSMENT ORDER IN ORDER TO TAKE NECESSARY STEPS. THE CE RTIFIED COPY OF THE ASSESSMENT ORDER WAS SIGNED BY THE ASSESSING OFFICER ON 25.1.2008 AND ISSUED TO THE ASSESSEE ON 28.1.2008 AND THEREAFTER THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) ON 28.2.2008 WHICH WAS WITHIN THE STIPULATED TIME. BUT THESE FACTS ARE NOT ACCEPTED BY THE LEARNED CIT(A) OBSERVING THAT THE ASSESSEE IS NOT DILIGENT IN PROSECUTING THE APPEAL THEREFORE HE HAS NOT CONDONED THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A) AND THEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT EVEN ADVERTING TO THE ISSUES RAISED BEFORE HIM ON MERITS. THE LEARNED AR OF THE ASSESSEE CONTENDED THAT THIS ACTION OF THE LEARNED CIT(A) IS NOTHING BUT THROWING OUT A GOOD CASE OF THE ASSESSEE ON THE PLEA THAT THERE IS DELAY IN FILING THE APPEAL. THE DELAY IS ONLY A PROCEDURAL LAPSE DUE TO WHICH THE ASSESSEE COULD NOT BE DENIED SUBSTANTIAL JUSTICE WHICH IT ENTITLED UNDER LAW. ACCORDINGLY, HE SOUGHT FOR SETTING ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR ADJUDICATION OF THE ISSU ES RAISED BEFORE HIM ON MERITS. 5. CONTRARY TO THIS, THE LEARNED DR HAS VEHEMENTLY ARGUED SUPPORTING THE ORDER OF THE LEARNED CIT(A) AND SOUGHT FOR UPHOLDING THE SAME BY DISMISSING THE APPEAL OF THE ASSESSEE , AS THE ASSESSEE IS NOT ABLE TO SHOW THE BONAFI DES IN THE DELAY CAUSED WHILE FILING THE APPEAL BEFORE THE LEARNED ITA NO.153/CTK/2011 4 CIT(A) AS THE LEARNED CIT(A) HAS RIGHTLY FOUND THAT THE ASSESSEE IS NOT DILIGENT IN PURSUING THE APPEAL IS VERY MUCH RIGHT AND REQUIRES NO INTERFERENCE. 6. ON CAREFUL ANALYSIS OF THE IMPUG NED ORDER PASSED BY THE LEARNED CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, IT IS FOUND THAT THE LEARNED CIT(A) IN HIS ORDER NOWHERE DENIED THE FACTUAL ASPECT OF STRIKE AND LABOUR UNREST PREVAILING IN THE ASSESSEES PREMISES AND THE D EPARTMENTAL AUTHORITIES ARE NOT ABLE TO PROVE THAT THE ASSESSMENT ORDER WAS SERVED TO THE RESPONSIBLE PERSON OF THE ASSESSEE IN TIME. THAT APART, THE NON - SERVICE OF THE ASSESSMENT ORDER IS CLEAR FROM THE FACT THAT THE ASSESSEE HAS APPLIED FOR CERTIFIED COP Y OF THE ASSESSMENT ORDER, WHICH WAS GRANTED BY THE ASSESSING OFFICER ACCORDINGLY ESTABLISHES THAT THE ASSESSEE WAS NOT SERVED WITH A COPY OF THE ASSESSMENT ORDER IN DUE COURSE. HENCE, THE ASSESSEE BEING DILIGENT IN EXERCISE OF HIS RIGHTS HAS TAKEN THE REC OURSE OF APPLYING THE CERTIFIED COPY OF THE ASSESSMENT ORDER AND SOON AFTER RECEIPT OF IT FILED THE APPEAL BEFORE THE LEARNED CIT(A). THESE FACTUAL AS P ECTS WERE NOT AT ALL DISCUSSED BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER. THEREFORE, THE ACTION OF THE LEARNED CIT(A) IN NOT CONDONING THE DELAY MORE SO IN THE ABSENCE OF NOT CONTROVERTING THE FACTS STATED BY THE ASSESSEE FOR THE CAUSE OF DELAY, IS NOT SUSTAINABLE FOR LEGAL SCRUTINY. HENCE, THAT PART OF THE ORDER OF THE LEARNED CIT(A) IS HEREBY SET ASIDE BY ALLOWING THE APPEAL OF THE ASSESSEE. HOWEVER, AS THE LEARNED CIT(A) HAS NOT ADJUDICATED OTHER ISSUES RAISED BEFORE HIM ON MERITS, WE FEEL IT JUST AND PROPER TO RESTORE THE SAID ISSUES TO BE DEALT WITH BY THE LEARNED CIT(A) ON MERIT OFCOURSE STRICTLY FOL LOWING THE PRINCIPLES OF NATURAL JUSTICE AND PASS NECESSARY CONSEQUENTIAL ORDER AS PER LAW. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE APPEAL TO HIS FILE FOR THE ABOVE PURPOSES. ITA NO.153/CTK/2011 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 12.08.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDE R FORWARDED TO : 1. THE APPELLANT: IDCOL ROLLING MILLS LTD., AT/P./O. HIRAKUD, DIST. SAMBALPUR, 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), SAMBALPUR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.