M/s. Canan Technologies Pvt. Ltd, V. Additional Commissioner of Income tax, Bangalore

ITA 2137/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7667 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH JT BENGALURU
• Assessee Lawyers: V SRINIVASAN
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NOS.2137 & 2138/BANG/2016 ASSESSMENT YEAR : 2010-11 M/S. CANAN TECHNOLOGIES PVT. LTD., HB-68, PANAMPILLY NAGAR, KOCHI 682 036. PAN: AACCC 0898F VS. THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE 11, BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVASAN, ADVOCATE RESPONDENT BY : SHRI B.R. RAMESH, JT. CIT(DR)(ITAT), BENGALURU DATE OF HEARING : 29.08.2017 DATE OF PRONOUNCEMENT : 31.08.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAIN ST THE RESPECTIVE ORDERS OF CIT(APPEALS) CONFIRMING THE PENALTY LEVIE D U/S. 271E AND 271D OF THE INCOME-TAX ACT, 1961 [THE ACT]. 2. THESE APPEALS WERE FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT(APPEALS) DISMISSING THE APPEALS BEING BARRED BY LIMITATION. THE DELAY IN BOTH THE APPEALS BEFORE THE CIT(APPEALS) WAS 398 DAYS FOR WHICH THE ASSESSEE HAS FURNISHED THE EXPLANATION THAT COPY OF ORDER WAS NOT COMMUNICATED TO THE ASSESSEE, IT WAS RATHER DELIVER ED TO ITS AUDITOR/CA. ITA NOS.2137 & 2138/BANG/2016 PAGE 2 OF 4 THE CONCERNED CA COULD NOT INFORM THE ASSESSEE ABOU T THE ASSESSMENT ORDER AS THE ASSESSEE HAD MOVED OUT OF THE BUSINESS PREMISES ON ACCOUNT OF HEAVY LOSSES SUFFERED IN ITS BUSINESS. DUE TO T HE NON-COMMUNICATION OF THE ASSESSMENT ORDER, THE ASSESSEE COULD NOT FILE T HE APPEAL IN TIME BEFORE THE CIT(APPEALS). 3. BEFORE THE CIT(APPEALS), THE ASSESSEE HAS EXPLAI NED THE ABOVE FACTS, BUT THE CIT(APPEALS) DID NOT APPRECIATE THE FACTS AND DISMISSED THE APPEALS BEING BARRED BY LIMITATION. 4. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEND ED THAT THE HONBLE SUPREME COURT HAS HELD IN THE CASE OF BALWANT SINGH (DEAD) VS JAGDISH SINGH & ORS. IN CIVIL APPEAL NO.1166 OF 2006 THAT LIBERAL APPROACH SHOULD BE ADOPTED WHILE DEALING WITH THE ISSUE OF CONDONAT ION OF DELAY IN FILING OF APPEAL. IF THE ASSESSEE HAD REASONABLE CAUSE FOR T HE DELAY IN FILING THE APPEAL, THE DELAY SHOULD BE CONDONED. 5. THE LD. DR, ON THE OTHER HAND, HAS SUBMITTED TH AT ASSESSEE SHOULD HAVE FILED THE APPEALS IN TIME AND NO VALID REASONS HAVE BEEN FURNISHED IN NOT FILING THE APPEALS IN TIME BEFORE THE CIT(APPEA LS). HE HAS, HOWEVER, PLACED RELIANCE UPON THE ORDER OF THE CIT(APPEALS). 6. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES, WE FIND THAT THE ASSESSEE HAS CATEGORICALLY STATED BEFORE T HE CIT(APPEALS) THAT THE ASSESSMENT ORDER WAS SERVED UPON THE AUDITOR AND NO T UPON THE ASSESSEE AND THE AUDITOR COULD NOT CONTACT THE ASSESSEE AS T HE ASSESSEE WAS NOT ITA NOS.2137 & 2138/BANG/2016 PAGE 3 OF 4 AVAILABLE AT HIS BUSINESS PREMISES, AS IT SUFFERED HEAVY LOSSES IN ITS BUSINESS ON ACCOUNT OF WHICH, THE ASSESSEE LEFT THE BUSINESS PREMISES AND WENT TO HIS VILLAGE. THESE FACTS WERE NOT VERIFIED BY THE CIT(APPEALS). THE CIT(A) DISMISSED THE APPEALS BEING BARRED BY LIMITA TION, WHEREAS THE ASSESSEE HAS CATEGORICALLY STATED THAT THE ASSESSME NT ORDER WAS SERVED UPON THE AUDITOR AND NOT UPON THE ASSESSEE. THE CI T(A) SHOULD HAVE VERIFIED THESE FACTS. THE ASSESSMENT ORDER WAS NOT SERVED UPON THE ASSESSEE, THEN HOW THE LIMITATION FOR FILING THE AP PEAL STARTS? WITHOUT VERIFYING THESE FACTS, THE CIT(APPEALS) COULD NOT H AVE DISMISSED THESE APPEALS. SINCE WE FIND REASONABLE CAUSE IN THE DEL AY IN FILING THE APPEALS BEFORE THE CIT(APPEALS), WE CONDONE THE DELAY IN FI LING OF APPEALS BEFORE THE CIT(APPEALS). ACCORDINGLY, THE ORDER OF CIT(AP PEALS) IS SET ASIDE AND RESTORED TO HIS FILE WITH A DIRECTION TO READJUDICA TE ALL THE ISSUES ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF AUGUST, 2017. SD/- SD/- ( J. SUDHAKAR REDDY ) ( SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 31 ST AUGUST, 2017. / D ESAI S MURTHY / ITA NOS.2137 & 2138/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.