The The ASR Distt. Co. Op. Milk Producers UNion Ltd, Amritsar. V. The Assistant Commissioner of Income Tax, Amritsar.

ITA 2/ASR/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4551 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJAN BAJAJ
• Keywords: Principle of natural justice; Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.02(ASR)/2015 ASSESSMENT YEAR:2008- 09 THE AMRITSAR DISTRICT CO-OP. MILK PRODUCERS UNION LTD., MILK PLANT VERKA, BATALA ROAD, AMRITSAR PAN:AAAAA0503F VS. THE DY. CIT AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAJAN BAJAJ (ADV.) RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 30.05.2018 DATE OF PRONOUNCEMENT: 30.05.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORD ER DATED 18.09.2014, IMPUGNED HEREIN, PASSED BY THE LD. CIT(A )- AMRITSAR, U/S 250(6) OF THE I.T. ACT, 1961 (HEREINAFTE R CALLED AS THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEA L. ITA NO.02/ASR/2015 (A.Y:2008-09) THE AMRITSAR DISTRICT CO.OP. MI LK PRODUCERS UNION LTD. VS. DY. CIT 2 1. THAT THE HONBLE CIT (APPEALS) PASSED AN UNJUST AND NON- SPEAKING ORDER. 2. THAT THE HONBLE CIT (APPEALS) PASSED THE ORDER WIT HOUT CONSIDERING THE GROUNDS OF APPEAL AND WITHOUT DISCU SSING THE SAME IN HIS ORDER. 3. THAT THE HONBLE CIT (APPEALS) WITHOUT DISCUSSION O N THE FACTS OF THE CASE AGREED WITH THE FINDINGS OF THE A SSESSING OFFICER WITHOUT BRINGING ON RECORD ANY POSITIVE ARG UMENTS OR ANY MATERIAL EVIDENCE. 4. THAT WITHOUT PREJUDICE TO THE ABOVE TAKEN GROUNDS O F APPEAL, IT IS SUBMITTED THAT THE AO HAS INCORRECTLY TAKEN T HE CAPITAL RECEIPTS AS REVENUE AND TAXED THE SAME. HE HAS FAIL ED TO BRING ON RECORD ANY CONSTRUCTIVE ARGUMENTS IN HIS F AVOUR. THE AMOUNT RECEIVED AND PAID TO THE MILKFED WHICH CONTROLS ALL THE MILK PLANTS IN PUNJAB IS PURELY AN ADVANCE AND IS TO BE ADJUSTED AND REPAID DURING THE COURSE OF TIME. 5. THAT THE AO HAS FAILED TO BRING ON RECORD ANY LEGAL ARGUMENT TO SUBSTANTIATE HIS CLAIM OF ADDING BACK INTO O 6. THE NATURE OF AMOUNT RECEIVED IS THAT OF CREDITOR A ND NOT INCOME AS PRESUMED BY THE LEARNED ASSESSING OFFICER . 7. THAT THE APPELLANT CRAVES TO AMEND, MODIFY OR ADD A NY OTHER GROUND OR GROUNDS FOUND FEASIBLE AT THE TIME OF HEA RING. 3. IT IS APPARENT FROM THE RECORD, THAT THERE IS DELAY O F 4 DAYS IN FILING OF THE APPEAL AND THE DELAY HAS BEEN E XPLAINED BY THE LD. AR BY FILING AN AFFIDAVIT OF THE ASSESSEE TO TH E EFFECT THAT ONE EMPLOYEE SMT. MADHU BALA HAS EXPIRED ON 29.12.20 14, WHO WAS ENTRUSTED WITH THE DUTY TO DELIVER, THE DOCUMENTS R ELATED TO THE APPEAL TO THE CONCERNED COUNSEL, THEREFORE, THE DEL AY OF FOUR DAYS HAS BEEN OCCURRED. ITA NO.02/ASR/2015 (A.Y:2008-09) THE AMRITSAR DISTRICT CO.OP. MI LK PRODUCERS UNION LTD. VS. DY. CIT 3 4. THE LD. DR HAS NOT REFUTED THE EXPLANATION OF THE L D. AR, HENCE, CONSIDERING THE EXPLANATION AND IN THE INTEREST OF NATURAL JUSTICE, THE DELAY OF 4 DAYS IN FILING THE APPEAL HAS B EEN CONDONED. 5. NOW COMING TO THE MERIT OF THE CASE, IT REFLECTS FR OM THE ORDER IMPUGNED HEREIN, THAT FOUR NOTICES HAVE BEEN ISSU ED TO THE ASSESSEE, HOWEVER, THE SAME REMAINED UNCOMPLIED. THERE WA S NO RESPONSE FROM THE ASSESSEE AS TO WHY THE NOTICES REMAINED UNCOMPLIED AND UNATTENDED, THEREFORE, IN THE SAID EVE NTUALITY THE LD. CIT(A) FINDING NO OPTION DISMISSED THE APPEAL OF THE ASSESSEE AS EX-PARTE ON NON-PROSECUTION, IN LIMINE. 6. THE ASSESSEE HAS PREFERRED THE INSTANT APPEAL AGAINST TH E SAID ORDER AND IN SUPPORT OF NON-APPEARANCE, IT WAS SUB MITTED BY THE LD. COUNSEL THAT THE ASSESSEE WAS PREVENTED TO AP PEAR BEFORE THE LD. CIT(A) DUE TO SOME DOMESTIC REASONS, HOWE VER NOW UNDERTAKES TO APPEAR AS AND WHEN REQUIRED, IF THE APPEAL BE REMANDED TO THE FILE OF THE LD. CIT(A) FOR DECISIO N AFRESH BECAUSE THE LD. CIT(A) HAS FAILED TO PASS THE ORDER ON MERIT. 7. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE OR DER IMPUGNED HEREIN. THE APPELLANT DID NOT BOTHER ITSELF TO APPEAR AND CO-OPERATE WITH APPELLATE PROCEEDINGS EVEN AFTER A FFORDING FOUR OPPORTUNITIES. ALTHOUGH THE INSTANT APPEAL OF T HE ASSESSEE IS LIABLE TO BE DISMISSED IN ORDER TO GIVE EFFECT TO THE PRINCIPLE ITA NO.02/ASR/2015 (A.Y:2008-09) THE AMRITSAR DISTRICT CO.OP. MI LK PRODUCERS UNION LTD. VS. DY. CIT 4 THAT LAW DOES NOT ASSIST THE PERSON WHO IS INACTIVE AND SL EEPS OVER HIS RIGHTS BY ALLOWING THEM WHEN CHALLENGED OR DI SPUTED TO REMAIN DORMANT, WITHOUT ASSERTING THEM IN A COURT OF L AW. THE, PRINCIPLE WHICH FORMS THE BASIS OF THIS RULE IS EXPRESSED IN THE MAXIM VIGILANTIBUS , NON DORMIENTIBUS , JURA SUBVENIUNT (LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEE P OVER THEIR RIGHTS), BUT EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT MISTAKES. AS THE APHORISM TO ERR IS HUMAN AND IS MORE A PRACTICAL NOTION OF HUMAN BEHAVIOUR THAN AN ABSTRACT P HILOSOPHY, THE UNINTENTIONAL LAPSE ON THE PART OF A LITIGANT SHO ULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSED BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDI CTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAK E COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIBLE TO E NTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE, CONSIDERING T HE FACTS THAT THE LD. CIT(A) HAS NOT PASSED THE ORDER UNDER CHAL LENGE ON MERIT, HENCE WE FEEL IT APPROPRIATE AND PROPER TO RE MAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) TO DECID E AFRESH ON MERITS , WHILE AFFORDING PROPER AND REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT , IN ORDER TO FOL LOW THE PRINCIPLE OF NATURAL JUSTICE. WE ALSO FEEL IT APPROPRIATE TO DIRECT THE ASSESSEE/APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) ITA NO.02/ASR/2015 (A.Y:2008-09) THE AMRITSAR DISTRICT CO.OP. MI LK PRODUCERS UNION LTD. VS. DY. CIT 5 AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, T HE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.05.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 30.05.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASR DIST. CO-OP. MILK, PRODUCERS UNION LTD . AMRITSAR (2) THE DY. CIT, AMRITSAR (3) THE CIT(A)-AMRITSAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER