M/s Jaidei Devi Anandram Jaipuria Public Charitable Trust, Kanpur V. Astt. Commissioner of Income Tax-1, Kanpur

ITA 187/LKW/2015

• Counselvise Citation: 18723714 RSA 2015
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-06-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Keywords: Depreciation; Charitable institution; Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.187/LKW/2015 ASSESSMENT YEAR:2003-04 M/S JAIDEI DEVI ANANDRAM JAIPURIA PUBLIC CHARITABLE TRUST 85, CANTONMENT, KANPUR V. ACIT-I KANPUR TAN/PAN:AAATJ0670P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. UMANG JAIN, ADVOCATE RESPONDENT BY: SHRI. Y. P. SRIVASTAVA, D.R. DATE OF HEARING: 25 06 2015 DATE OF PRONOUNCEMENT: 15 07 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THAT THE LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DECIDING THE MATTER EX-PARTE DESPITE THE FACT THAT THE NOTICE RETURNED BACK UNSERVED AMOUNTING TO NON-SERVICE. 2. THAT THE LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT TRUST AND PROCEEDING IN HASTE DESPITE NON-SERVICE OF NOTICE. 3. THAT THE LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS WITHOUT :- 2 -: CONSIDERING AND APPRECIATING THE FACTS ON RECORD AND THE MERIT(S) OF THE CASE. 4. THAT THE LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT TREATING THE EXCESS OF EXPENDITURE OVER INCOME OF FINANCIAL YEAR 2001-2002 RELEVANT TO ASSESSMENT YEAR 2002-2003 AS APPLICATION OF INCOME IN FINANCIAL YEAR 2002-2003 RELEVANT TO ASSESSMENT YEAR 2003-2004. 5. THAT THE LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE DISALLOWANCE OF DEPRECIATION OF RS.2,91,960/- CLAIMED IN THE ASSESSMENT YEAR 2003-2004. 6. THAT THE ORDER OF LD. C.I.T.(A)-II, DEHRADUN HOLDING CONCURRENT CHARGE OF C.I.T.(A)-II, KANPUR IS INSUPPORTABLE IN LAW AND ON FACTS AND IS ALSO CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY AND DESERVES TO BE QUASHED. 7. THAT ANY OTHER RELIEF OR RELIEFS AS YOUR HONOUR(S) MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, BE GRANTED. 2. THIS APPEAL IS BARRED BY 369 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY AND DURING THE COURSE OF HEARING IT WAS CONTENDED THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE AND WITHOUT EVEN SERVING NOTICE OF HEARING UPON THE ASSESSEE AND THE ASSESSEE WAS NOT AWARE ABOUT THE HEARING OF THE APPEAL. WHEN THE ASSESSEE RECEIVED THE SHOW CAUSE NOTICE UNDER SECTION 271(1)(2) OF THE INCOME-TAX ACT, 1961 DATED 18.3.2005 ARISING OUT OF EX-PARTE ORDER, IT WAS REALIZED THAT THE APPEAL MIGHT HAVE BEEN DISPOSED OF. THEN THE ASSESSEE HAS VERIFIED FROM THE OFFICE OF THE LD. CIT(A) AND IT WAS FOUND THAT THE APPEAL WAS DISPOSED OF EX-PARTE. THE ASSESSEE IMMEDIATELY MOVED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THEREFORE, THE DELAY OF 369 DAYS IS NOT INTENTIONAL, BUT :- 3 -: DUE TO THE REASONS STATED ABOVE. FINDING FORCE IN THE EXPLANATION FOR DELAY IN FILING OF THE APPEAL, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. OUR ATTENTION WAS INVITED TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL IN FEW LINES WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. 4. THE LD. D.R. HAS ALSO AGREED TO THIS SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 5. IN THE LIGHT OF THE AFORESAID ARGUMENTS, WE ARE OF THE VIEW THAT SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH JULY, 2015 JJ:2506 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR