Ushita Trading & Agency Limited , Kolkata V. ITO, Ward - 2(4), Kolkata , Kolkata

ITA 1836/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9761 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHESHYAM
• Assessee Lawyers: S JHAJHARIA
• Section: 263

Judgement Text

1 ITA NO.1836/KOL/2018 USHITA TRADING & AGENCY LTD.., AY 2008-09 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1836/KOL/2018 ASSESSMENT YEARS: 2008-09 USHITA TRADING & AGENCY LIMITED (PAN: AAACU3269L) VS. INCOME-TAX OFFICER, WD-2(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 22.04.2019 DATE OF PRONOUNCEMENT 01.07.2019 FOR THE APPELLANT SHRI S. JHAJHARIA, CA FOR THE RESPONDENT SHRI RADHE SHYAM, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-19, KOLKATA DATED 11.12.2017 FOR AY 2008-09. 2. THIS APPEAL OF ASSESSEE IS TIME BARRED BY 142 D AYS AND THE ASSESSEE HAS FILED A CONDONATION PETITION. CONSIDERING THE PLEA OF THE ASSESSEE EXPLAINING THE REASON FOR THE DELAY, AS STATED IN THE PETITION FILED FOR CONDONAT ION OF DELAY, WE NOTE THAT THE DELAY WAS NOT CAUSED INTENTIONALLY BY THE ASSESSEE AND WAS DUE TO OMISSION ON THE PART OF AN EMPLOYEE IN THE OFFICE OF LD. AR WHO LEFT THE JOB AND KEPT THE FILE OF THE ASSESSEE ALONG WITH DISPOSED OFF CASES. THUS LD. AR WAS NOT AWARE OF THE STATUS OF THE CASE, WHEN THE FACT WAS THAT REQUISITE FEE OF RS.10,000/- WAS FILED BY HIS OFFICE FOR FILI NG OF APPEAL ON 08.03.2018, AND THE APPEAL WAS FILED ONLY IN AUGUST 2018. SO WE NOTE THAT ASSE SSEE CANNOT BE FAULTED FOR THE OMISSION INADVERTENTLY HAPPENED AT THE OFFICE OF THE LD. AR. FROM THE FACTS AND CIRCUMSTANCES DISCUSSED, WE ARE OF THE OPINION THAT THERE IS A RE ASONABLE CAUSE FOR CONDONING THE DELAY AND, THEREFORE, THE DELAY OF 142 DAYS IS CONDONED A ND THE APPEAL IS TAKEN UP FOR HEARING. 2 ITA NO.1836/KOL/2018 USHITA TRADING & AGENCY LTD.., AY 2008-09 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE FACT THAT THE IMPUGNED ORDER OF THE LD. CIT(A) EMANATES FROM THE ORDER OF THE AO GIVING EFFECT TO THE CITS ORDER PASSED U/S. 263 OF THE INCOME-TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 27.03.2012. IT WAS BROUGHT TO OUR NOTICE THAT THE ASSESSEE HAD CHALLENGED THE LEGALITY OF THE CITS ORDER PASSED U/S. 263 OF THE ACT BEFORE THIS TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 11.08.2016 WAS PLEASED TO ANNUL THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT. THEREFORE, ACCORDING TO LD. COUNSE L, THE AOS ORDER GIVING EFFECT TO THE CITS ORDER U/S. 263 OF THE ACT IS NULL IN THE EYES OF LAW. LD. DR COULD NOT CONTROVERT THE FACTS STATED ABOVE. 4. AFTER HEARING BOTH THE SIDES AND HAVING PERUSED THE ORDER OF THE TRIBUNAL DATED 11.08.2016, WE NOTE THAT THE TRIBUNAL HAD BEEN PLEA SED TO CANCEL THE REVISIONAL ORDER OF THE CIT PASSED U/S. 263 OF THE ACT DATED 27.03.2012 VID E ITS ORDER DATED 11.08.2016. WE NOTE THAT THE IMPUGNED ORDER OF CIT(A) EMANATES FROM THE AOS ORDER GIVING EFFECT TO THE REVISIONAL ORDER PASSED BY THE CIT U/S. 263 OF THE ACT WHICH HAS ALREADY BEEN CANCELLED BY THIS TRIBUNAL, THEREFORE, WHEN THE FOUNDATION GOES THE SUPER STRUCTURE FALLS. SINCE THE ORDER OF CIT PASSED U/S. 263 OF THE ACT IS NULL IN THE EY ES OF LAW AFTER THE TRIBUNALS ORDER DATED 11.08.2016, THE AOS ORDER GIVING EFFECT TO THE ORD ER OF THE CIT PASSED U/S. 263 OF THE ACT IS NULL IN THE EYES OF LAW, THEREFORE WE FIND MERIT IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE AND WE ALLOW THE APPEAL OF THE ASSESSE E AND DIRECT DELETION OF ADDITION MADE BY A.O AND CONFIRMED BY CIT(A) IN THE IMPUGNED ORDER. 5. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2019. SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 ST JULY, 2019 JD.(SR.P.S.) 3 ITA NO.1836/KOL/2018 USHITA TRADING & AGENCY LTD.., AY 2008-09 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT USHITA TRADING & AGENCY LIMITED, 52, WE STON STREET, KOLKATA-700 012. 2 RESPONDENT ITO, WARD-2(4), KOLKATA. 3 4 5 CIT(A)-19, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR