Shri Naranbhai N. Thumar, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-3(4), RAJKOT-GUJARAT

ITA 222/RJT/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7323 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KRISHNA PRABHAKAR
• Keywords: Condonation of delay
• Section: 10(14); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA (JM) AND SHRI A. L. GEHL OT AM). ITA NO. 222 & 223/RJT/2010 (ASSESSMENT YEARS 2003-04 & 2004-05) SHRI NARANBHAI N. THUMAR, VS. THE I.T.O., WARD -3(4), DEVELOPMENT OFFICER, LIC OF INDIA, JAMNAGA R. NEW SUPER MARKET, JAMNAGAR. PAN:ABFOT0788C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI KRISHNA PRABHAKAR, D. R. ASSESSEE BY : WRITTEN SUBMISSION. DATE OF HEARING : 28-11-2011. DATE OF PRONOUNCEMENT : -12-2011. O R D E R. PER A. L. GEHLOT (A.M.) : THESE APPEALS BY THE ASSESSEE AGAINST THE APPELLATE ORDER OF COMMISSIONER OF INCOME TAX (APPE ALS), JAMNAGAR DATED 20- 01-2010 FOR ASSESSMENT YEAR 2003-04 &2004-05. 2. THE GROUNDS RAISED IN BOTH THEE APPEALS ARE BAS ED ON IDENTICAL SET OF FACT. THEREFORE, FOR THE SAKE OF CONVENIENCE, BOTH APPEALS ARE DECIDED BY THIS COMMON ORDER. 3. THE COMMON GROUND RAISED IN THESE APPEALS IS IN RESPECT OF DISALLOWANCE OF RS.33,250/- FOR A.Y.2003-04 AND RS.29,925/- FOR A.Y.2004-05 OUT OF ADDITIONAL CONVEYANCE ALLOWANCE RAISED BY THE ASSESSEE FROM LI C AS DEVELOPMENT OFFICER. ONE MORE EFFECTIVE GROUND RAISED IN THESE APPEALS I S IN RESPECT OF NON-PROVIDING REASONABLE OPPORTUNITY OF HEARING. 4. THE ASSESSEE INSTEAD OF PUTTING HIS PERSONAL PRE SENCE FILED WRITTEN SUBMISSIONS. IT A 222 & 223-RJT-2011 A.Y . 2003-04 & 04-05. 2 5. BOTH THESE APPEALS HAVE BEEN FILED LATE BY 409 D AYS. THE ASSESSEE FILED CONDONATION OF DELAY STATING THE REASON FOR NOT FIL ING THE APPEAL IN TIME. THE ASSESSEES BROTHER-IN-LAW I.E. HUSBAND OF ASSESSEE S WIFE;S ELDER SISTER EXPIRED IN 2010 AND DUE TO PROBLEM IN FAMILY, THE ASSESSEE REMAINED BUSY TO LOOK AFTER HIS FAMILY. 6. AFTER HEARING THE LD. D.R. AND AFTER CONSIDERING THE FACTS OF THE CASE, THE DELAY IN FILING APPEALS IS CONDONED. 7. THE COPY OF ASSESSMENT ORDER FILED BY THE ASSESS EE IS NOT READABLE. HOWEVER, ON THE BASIS OF MATERIAL AVAILABLE ON RECO RDS, THESE APPEALS HAVE BEEN DECIDED. 8. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DEVELOPMENT OFFICER WITH LIC. HE RECEIVED ADDITIONAL CONVEYANCE ALLOWA NCE AND SAME WAS CLAIMED EXEMPT UNDER SECTION 10 OF THE ACT. THE AO DISALLO WED THE SAME. THE CIT(A) CONFIRMED THE ACTION OF THE AO ON THE GROUND THAT T HE ASSESSEE IS FAILED TO PRODUCE DETAILS OF EXPENDITURE. 9. AFTER HEARING THE LD. D.R. AND ON PERUSAL OF REC ORD, WE FIND THAT IN PRINCIPLE, IT IS SETTLED POSITION OF LAW THAT CONVE YANCE ALLOWANCE/ADDITIONAL CONVEYANCE ALLOWANCE RECEIVED BY THE DEVELOPMENT OF FICER OF THE LIC ARE EXEMPTED UNDER SECTION 10(14) OF THE ACT. HONBLE M ADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. GURUDEV SINGH JAGGI 267 ITR 763 WHEREIN HONBLE MADHYA PRADESH HIGH COURT HAS FOLLOWED THEIR EARLIE R JUDGMENT IN THE CASE OF CUT VS. A.K. GOSH 263 ITR 536. THE ASSESSEE FILED SLP AGAINST THE JUDGMENT OF MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. GURUDEV SINGH JAGGI (SUPRA) WHICH HAS BEEN DISMISSED, 266 ITR 104 (STAT UTE). THE RELEVANT FINDING OF MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. A.K. GOSH READS AS UNDER:- 13. READING THE AFORESAID PROVISIONS IN ENTIRETY A ND APPRECIATING THE FACTUAL SCENARIO IN PROPER PERSPECTIVE AND KEEPING IN VIEW THE INSTRUCTIONS OF THE LIFE INSURANCE CORPORATION AND THE GAZETTE N OTIFICATION ISSUED BY IT A 222 & 223-RJT-2011 A.Y . 2003-04 & 04-05. 3 THE GOVERNMENT OF INDIA WE CONCLUDE AND HOLD THAT T HE CONVEYANCE ALLOWANCE/ADDITIONAL CONVEYANCE ALLOWANCE RECEIVED BY THE DEVELOPMENT OFFICER OF THE LIFE INSURANCE CORPORATION ARE EXEMP TED UNDER SECTION 10(14) OF THE ACT AND HENCE, THE ORDER PASSED BY TH E TRIBUNAL IS IMPECCABLE ON THIS SCORE. 10. IT IS ALSO SETTLED POSITION OF LAW THAT THE DED UCTION FROM CONVEYANCE ALLOWANCE OR ADDITIONAL CONVEYANCE ALLOWANCE IS ALL OWABLE ONLY ON ACTUAL EXPENDITURE. IN THIS REGARDS, A DECISION OF ITAT R AJKOT BENCH IN THE CASE OF MAHENDRA TRIKAMBHAI MAMTORA & ORS. ITA NO.166 & 167 /RJT/2008 ORDER DATED 24-06-2008 AND ITA NO.696/RJT/2010 ORDER DATED 14-0 7-2010 HAS BEEN FILED BY ASSESSEE. IN THE SAID DECISION OF ITAT, ABOVE JUDG MENT OF MADHYA PRADESH HIGH COURT HAS NOT BEEN CONSIDERED AGAINST WHICH TH E SLP HAS BEEN DISMISSED BY THE SUPREME COURT. THUS, THE DECISIONS CITED BY AND WRITTEN SUBMISSION SUBMITTED BY ASSESSEE ARE DISTINGUISHABLE ON FACTS. THE ORDER OF AO IS ALSO NOT READABLE IN THE CASE UNDER CONSIDERABLE. IN THE LI GHT OF THE FACTS AND IN THE LIGHT OF GROUND TAKEN BY THE ASSESSEE THAT THE ASSESSEE H AS NOT BEEN PROVIDED REASONABLE OPPORTUNITY OF HEARING, WE THEREFORE, TH INK PROPER TO SEND BACK THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO D ECIDE THE ISSUE AND IN ACCORDANCE WITH LAW KEEPING IN VIEW ABOVE DISCUSSIO N AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 -12-20 11. SD/- SD/- ( T. K. SHARMA ), ( A. L. GEHLOT ), JUDICIAL MEMBER. ACCOUNTANT MEMBER. RAJKOT. DATED: 15 -12-2011. NVA/ IT A 222 & 223-RJT-2011 A.Y . 2003-04 & 04-05. 4 COPY TO:- 1.SHRI NARANBHAI N. THUMAR, JAMNAGAR. 2THE I.T.O., WARD-3(4), JAMNAGAR. 3.THE C.I.T.(A)-II, RAJKOT. 4.THE C.I.T., RAJKOT. 5.THE D.R., ITAT, RAJKOT. TRUE COPY. BY ORDER, ASSTT. REGISTRAR, ITAT,RAJKOT.