Cheviot Company Limited Employees Gratuity Trust Fund , Kolkata V. ITO, Ward - 32(1) , Kolkata

ITA 2699/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4052 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER SRDR
• Assessee Lawyers: MANISH TIWARI
• Keywords: Opportunity of being heard; Set aside
• Section: 143(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 2699/KOL/2018 ASSESSMENT YEAR: 2014-15 CHEVIOT COMPANY LIMITED EMPLOYEES GRATUITY TRUST FUND .............................APPELLANT MAGNA HOUSE, 9 TH FLOOR, 24, PARK STREET, KOLKATA 700 016. [PAN: AAATC 5070 G] ITO, WARD 32(1), KOLKATA....................................RESPONDENT 10B, MIDDLETON ROW, KOLKATA 700 071. APPEARANCES BY: SHRI MANISH TIWARI, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER, SR. DR, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 08, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 08, 2019 ORDER PER P.M. JAGTAP, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 9, KOLKATA DATED 29.11.2018 WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS BARRED BY LIMITATION 2. THE ASSESSEE IN THE PRESENT CASE IS AN APPROVED GRATUITY FUND CREATED WITH AN OBJECT TO PROVIDE GRATUITY BENEFITS TO THE EMPLOYEES WORKING IN CHEVIOT COMPANY LTD. ON RETIREMENT / RESIGNATION FROM SERVICES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 24.09.2015 DECLARING ITS TOTAL INCOME AT NIL AFTER CLAIMING EXEMPTION U/S 10 AT RS. 2,69,28,425/-. THE SAID RETURN WAS PROCESSED U/S 143(1) AND IN THE INTIMATION U/S 143(1) DATED 16.03.2016 ISSUED BY CPC, BANGALORE, THE TOTAL INCOME OF THE ASSESSEE 2 I.T.A. NO. 2699/KOL/2018 ASSESSMENT YEAR: 2014-15 CHEVIOT COMPANY LTD. EMPLOYEES GRATUITY TRUST FUND WAS DETERMINED AT RS. 2,69,28,425/- AFTER DISALLOWING THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 10. 3. AGAINST THE INTIMATION ISSUED U/S 143(1), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). THERE WAS HOWEVER A DELAY OF 213 DAYS ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL WHICH WAS SOUGHT TO BE CONDONED BY THE ASSESSEE BY FILING AN APPLICATION ON THE FOLLOWING GROUNDS: 1. THAT THE PETITION RECEIVED ORDER U/S 143(1) OF INCOME TAX ACT DATED 16.03.2016 PASSED BY CPC BANGALORE AND SENT THROUGH ONLINE SYSTEM ON 31.03.2016. 2. THAT APPEAL AGAINST ORDER U/S 143(1) DATED 16.03.2016 WAS ACCORDINGLY DUE TO BE FILED ON OR BEFORE 30.04.2016. 3. THAT APPEAL AGAINST ORDER U/S 143(1) DATED 16.03.2016 COULD NOT BE FILED WITHIN DUE DATE BECAUSE OF COMPELLING REASONS: I. THE APPELLANT WAS UNDER IMPRESSION THAT DETERMINATION OF CORRECT INCOME IS CURABLE THROUGH APPLICATION U/S 154 OF INCOME TAX ACT AND TIME AVAILABLE FOR SUCH ACTION U/S 154 IS FOUR YEARS. II. THE APPELLANT ACCORDINGLY, FILED PETITION U/S 154 DATED 08.04.2016 BEFORE CPC WHO REJECTED THE SAME THROUGH COMMUNICATION DATED 02.06.2016. II. THE SAID COMMUNICATION OF CPC WAS RECEIVED BY THE APPELLANT ON 24.10.2016. 4. THEREAFTER, THE PETITIONER CONTACTED THE CA FROM WHO TOOK TIME TILL 29.11.2016 FOR DRAFTING STATEMENT OF FACTS AND GROUNDS OF APPEAL ETC. THE SAID DRAFTS WERE DISCUSSED, FINALIZED AND SIGNED ON 30.11.2016. IN THE CIRCUMSTANCES, THE APPEAL FILED TODAY MAY BE ACCEPTED BY CONDONING THE DELAY OF 213 DAYS. 4. THE LD. CIT(A) DID NOT FIND MERIT IN THE APPLICATION FILED BY THE ASSESSEE FOR THE CONDONATION OF THE DELAY AND REJECTING THE SAME, HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS 3 I.T.A. NO. 2699/KOL/2018 ASSESSMENT YEAR: 2014-15 CHEVIOT COMPANY LTD. EMPLOYEES GRATUITY TRUST FUND BARRED BY LIMITATION FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER: I HAVE CONSIDERED THE PETITION. THE APPELLANT HAD APPLIED FOR RECTIFICATION U/S 154 TO THE AO AS THE ISSUES BEING MISTAKES IN COMPUTATION / TAX CREDIT ONLY U/S 143(1) OF THE INCOME TAX ACT, 1961, COULD HAVE BEEN ADDRESSED IN RECTIFICATION. THE AO HAS CONSIDERED THE PETITION FOR RECTIFICATION U/S 154 AND HAS REJECTED THE SAME THROUGH COMMUNICATION DATED 02.06.2016. AR HAS STATED THAT NO APPEAL HAS BEEN FILED AGAINST ORDER U/S 154 AND THUS IT APPEARS THAT THE APPELLANT IS NOT AGGRIEVED AGAINST THE ORDER U/S 154 OF THE ACT. THE APPELLANT HAS FILED APPEAL AGAINST INTIMATION U/S 143(1) DATED 16.03.2016. THE MATTER HAS ALREADY BEEN BROUGHT INTO CONSIDERATION OF THE ASSESSING OFFICER VIDE RECTIFICATION PETITION U/S 154 AND THE SAME HAS BEEN REJECTED. AS STATED BY AR, NO APPEAL HAS BEEN FILED AGAINST ORDER U/S 154. THE APPELLANT HAS ALREADY TAKEN RECOURSE TO THE REMEDY AVAILABLE AND HAS NOT FILED APPEAL AGAINST THE ORDER U/S 154. THERE IS THUS NO SATISFACTORY REASON THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE STIPULATED TIME. THIS WAS A CONSCIOUS DECISION OF THE APPELLANT NOT TO FILE APPEAL WITHIN STIPULATED TIME. THE APPEAL IS NOT ADMITTED. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE FIRST HAD FILED AN APPLICATION SEEKING RELIEF BY WAY OF RECTIFICATION U/S 154 AND AFTER HAVING FAILED TO SUCCEED THEREIN, HE PERUSED THE OTHER REMEDY BY FILING AN APPEAL AGAINST THE INTIMATION U/S 143(1) BEFORE THE LD. CIT(A) WHICH CAUSED THE DELAY. HAVING REGARD TO ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE DELAY OF 228 DAYS ON THE PART OF THE ASSESSEE IN FILING THE APPEAL BEFORE THE LD. 4 I.T.A. NO. 2699/KOL/2018 ASSESSMENT YEAR: 2014-15 CHEVIOT COMPANY LTD. EMPLOYEES GRATUITY TRUST FUND CIT(A) AGAINST THE INTIMATION U/S 143(1) WAS FOR SUFFICIENT CAUSE IN AS MUCH AS ONE REMEDY AVAILABLE WITH THE ASSESSEE OF SEEKING THE RECTIFICATION OF INTIMATION U/S 143(1) WAS BEING PURSUED BY THE ASSESSEE AND AFTER HAVING FAILED TO GET RELIEF THEREIN, HE TOOK RECOURSE TO THE OTHER REMEDY AVAILABLE BY FILING AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE INTIMATION U/S 143(1) WHICH CAUSED THE DELAY. IT IS WELL SETTLED THAT THE EXPRESSION SUFFICIENT CAUSE IS TO BE CONSTRUED LIBERALLY IN ORDER TO SERVE SUBSTANTIAL CAUSE OF JUSTICE AND NOT STRICTLY TO DEFEAT ITS VERY PURPOSE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AND AFTER CONDONING THE DELAY ON THE PART OF THE ASSESSEE IN FILING THE SAME. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH MARCH, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 08/03/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. CHEVIOT COMPANY LIMITED EMPLOYEES GRATUITY TRUST FUND, MAGMA HOUSE, 9 TH FLOOR, 24, PARK STREET, KOLKATA 700 016. 2. ITO, WD-32(1), 10B, MIDDLETON ROW, KOLKATA 700 071. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA