M/s F.I Builders Pvt. Ltd., Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 3/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2353 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 02-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: B P YADAV COST ACCOUNTANT
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 03/LKW/2018 ASSESSMENT YEAR: 2013 - 14 M/S F.I. BUILDERS PVT. LTD. 118/86 KHA, CANTT. ROAD LUCKNOW V. INCOME TAX OFFICER 2(5) LUCKNOW T AN /PAN : AAACF6583G (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI B.P. YADAV, COST ACCOUNTANT RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 05 03 2019 DATE OF PRONOUNCEMENT: 08 0 3 2019 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - I, LUCKNOW DATED 29/9/2017 FOR ASSESSMENT YEAR 2013 - 14. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE REPRODUCED BELOW: - 1 . THE LEARNED COMMISSIONER ( INCOME TAX (APPEALS) - I, LUCKNOW (HEREINAFTER REFERRED TO A S THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL OF THE APPELLANT BY PASSING AN EX - PARTE ORDER WITHOUT HEARING THE APPELLANT TO DECIDE THE APPEAL ON MERIT. 2 . THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT CONDONING THE DELAY OF 314 DAYS C AUSED IN FILING THE APPEAL WITHOUT APPRECIATING THAT THERE WAS SUFFICIENT CAUSE BEHIND NOT FILING THE APPEAL ON OR BEFORE DUE DATE OF FILING THE APPEAL. 3 . THE LD . C IT(A) ERRED ON FACTS AND I N LAW IN CONFIRMING THE ADDITION OF 4,82,400/ - ARRIVED AT THE RATE O F 8 % OF THE VALUE OF FLAT SOL D OF RS.60,30,000/ - WITHOUT APPRECIATING THE FACT THAT THE BOOKS OF THE APPELLANT ARE DULY AUDITED BY A CHARTERED ACCOUNTANT ITA NO.03/LKW/2018 PAGE 2 OF 4 AND ENTRIES APPEARING IN THE BOOKS A RE SUPPORTED WITH BILLS AND VOUCHERS. 4 . THE LD CIT(A) ERRED ON FACT S AND IN LAW IN CONFIRMING THE ESTIMATED ADDITION OF RS.13 , 49,547/ - MADE BY THE LD. A.O. ON ACCOUNT OF RECEIPTS FROM FAMILY BAZAAR BEING RUN BY THE APPELLANT WITHOUT APPREC IATING THE MATERIAL FACTS PLACED BEFORE HIM. 5 . ON THE FACTS STATED IN THE STATEMENT OF FACTS, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS 1 3,49,547/ - WITHOUT PREJUDICE TO ABOVE 6 . THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THE FACT THAT ONCE PROFIT IS ESTIMATED BY REJECTING THE BOOKS OF THE APPELLANT, NO SEPARATE ADDITION CAN BE MADE IN THE HANDS OF THE APPELLANT AND HENCE ADDITION OF RS.13,49,547/ - IS UNJUSTIFIED. 7 . THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT PROVIDING THE APPELLANT THE PROPER ADEQUATE OR SUFFICIENT OPPORTUNITY TO HAVE IT SAY ON THE ME RIT AS WELL AS ON THE FACTUAL ASPECT OF THE CASE. 8 . THE APPELLANT RESERVES ITS RIGHT TO ADVANCE SUCH OTHER GROUNDS BEFORE OR AT THE HEARING, WHICH IT MAY CONSIDER FIT AND APPROPRIATE, FOR WHICH IT CRAVES LEAVE TO AMEND, ALTER OR OTHERWISE MODIFY THE GROUPS A PP E ARING HEREINBEFORE WITH THE KIND PERMISSION OF THE HON'BLE BENCH. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED MY ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL E X - PARTE 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. HE FURTHER SUBMITTED THAT THE DELAY IN FILING OF THE APPEAL WAS NOT CONDONED BY THE LD. CIT(A) ALTHOUGH THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING OF THE APPEAL. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF ITA NO.03/LKW/2018 PAGE 3 OF 4 THE IMPUGN ED ISSUES ON MERIT IN THE LIGHT OF THE EVIDENCES FILED BY THE ASSESSEE , AFTER CONDONING THE DELAY IN FILING OF THE APPEAL . 3 . THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN T HE LIGHT OF THE RIVAL SUBMISSIONS, I FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT DEALING WITH THE ISSUES ON MERIT. WITH REGARD TO THE DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A), I FIND THAT THE LD. CIT(A), IN HIS ORDER, HAS REPROD UCED THE CONTENTS OF THE APPLICATION MOVED BY THE ASSESSEE FOR CONDONATION OF DELAY , WHICH , INTER ALIA, STATE THAT THE ACCOUNTANT, SHRI KAMRAN AHMAD, WHO WAS LOOKING AFTER THE TAXATION AFFAIRS OF THE ASSESSEE COMPANY DUE TO AN OVERSIGHT AND HIS FAMILY PROB LEMS FORGOT TO GET THE APPEAL PREPARED AND FILED WITHIN THE DUE DATE AS PRESCRIBE D UNDER THE ACT, THEREFORE, THE ASSESSEE REQUESTED TO CONDONE THE DELAY OF 314 DAYS. IN MY VIEW, THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A), AND THE LD. CIT(A) SHOULD HAVE BEEN LIBERAL IN TAKING A VIEW IN THE MATTER AND ACCORDINGLY SHOULD HAVE CONDONED THE DELAY AND GRANTED THE APPELLANTS OPPORTUNITY OF HEARING. 5 . WITH REGARD TO THE NOTICES ISSUED BY THE LD. CIT(A), I FIND THAT THE LD. CIT(A) HAS MENTIONED IN HIS ORDER A NUMBER OF DATES OF NOTICE ISSUED , BUT FROM THE ORDER OF THE LD. CIT(A) , IT IS NOT CLEAR WHETHER THE NOTICES HAVE BEEN SERVED ON THE ASSESSEE. IN THIS REGARD, I AM OF THE VIEW THAT THE LD. CIT(A) SHOULD HAVE ENSURE D SER VICE OF NOTICE ON THE ASSESSEE BY USING THE PARAPHERNALIA AVAILABLE WITH THE DEPARTME NT AND DECIDE D THE APPEAL ON MERIT AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.03/LKW/2018 PAGE 4 OF 4 6 . IN THIS VIEW OF THE MATTER, I SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADMIT THE APPEAL OF THE ASSESSEE FOR HEARING AFTER CONDONING THE DELAY IN FILING OF THE APPEAL AND RE - ADJUDICATE THE ISSUES ON MERIT AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSES SEE. I ALSO DIRECT THE ASSESSEE TO EXTEND ALL SORT OF CO - OPERATION IN PROSECUTING THE APPEAL BEFORE THE LD. CIT(A). 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08 / 0 3 / 201 9 . SD/ - [ T .S. KAPOOR ] ACCOUNTANT MEMBER DATED: 8 TH MARCH , 201 9 JJ: 0603 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR