Mahoba Urban Cooperative Bank Limited, Kanpur V. Assistant Commissioner of Income Tax- 5, Kanpur

ITA 32/LKW/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7613 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 15-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRAKHAR GUPTA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 32 & 33/LKW/2018 ASSESSMENT YEAR: 2012 - 13 & 2013 - 14 MAHOBA URBAN COOPERATIVE BANK LIMITED SUB HASH CHAWKI MAHOBA V. ACIT - 5 KANPUR T AN /PAN : AAAJM1205F (APP ELL ANT) (RESPONDENT) ITA NO. 788/LKW/2017 ASSESSMENT YEAR: 2014 - 15 MAHOBA URBAN COOPERATIVE BANK LIMITED SUBHASH CHAWKI MAHOBA V. ACIT - 5 KANPUR T AN /PAN : AAAJM1205F (APP ELL ANT) (RESP ONDENT) APPELLANT BY: SHRI PRAKHAR GUPTA, FCA RESPONDENT BY: SMT. ALKA SINGH, D.R. DATE OF HEARING: 23 04 201 9 DATE OF PRONOUNCEMENT: 23 04 201 9 O R D E R PER A. D. JAIN, V.P . : TH ESE ARE ASSESSEES APPEAL S AGAINST SEPARATE ORDERS OF THE LD. CIT(A) - II, KANPUR DATED 12/10/2017 AND 19/9/2017 FOR ASSESSMENT YEAR S 20 12 - 13 , 2013 - 14 AND 2014 - 15 RESPECTIVELY . 2 . IN ALL THE YEARS, THE ASSESSEE HAS TAKEN A COMMON GROUND THAT THE ORDER PASSED BY THE LD. CIT(A), KANPUR IS BAD IN LAW AND ITA NO.32 & 33/LKW/2018& ITA NO.788/LKW/2017 PAGE 2 OF 4 AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS IT HAS BEEN PASSED WITHOUT PROVIDING REASONABLE OPPORTUNITY. 3 . BY VIRTUE OF THE IMPUGNED ORDER S , THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL S FOR NON PROSECUTION, OBSERVING THAT IN REPLY TO THE NOTICE ISSUED, NOT EVEN A SINGLE COM PLIANCE HAS BEEN MADE TILL DATE. THE ORDER S OF THE LD. CIT(A) REVEAL THAT IN ASSESSMENT YEAR 2012 - 13, ONLY ONE NOTICE, DATED 29/9/2017 HAS BEEN ISSUED BY THE OFFICE OF THE LD. CIT(A) FOR COMPLIANCE ON 11/10/2017; THAT FOR ASSESSMENT YEAR 2013 - 14, TWO NOTI CES, DATED 8/3/2017 AND 28/9/2017 FOR COMPLIANCE ON 21/3/2017 AND 11/10/2017 RESPECTIVELY HAVE BEEN ISSUED; AND THAT FOR ASSESSMENT YEAR 2014 - 15, NO DATE OF ISSUANCE OF NOTICE HAS BEEN MENTIONED IN THE O RDER OF THE LD. CIT(A). 4 . THE LD. A.R. OF THE ASSESSE E HAS INVITED OUR ATTENTION TO THE AFFIDAVITS OF T HE CEO OF THE ASSESSEE, SHRI JYOTI KUMAR PURWAR . THE CONTENTS OF THE AFFIDAVITS ARE IDENTICAL, HOWEVER, FOR THE SAKE OF REFERENCE, THE CONTENTS OF THE AFFIDAVIT FOR ASSESSMENT YEAR 2012 - 13 ARE REPRODUCED, AS BELOW : AFFIDAVIT OF SHRI JYOTI KUAMR PURWAR, S/O SHRI RADHE SHYAM PURWAR AGED 44 YEARS , RESIDING AT DARIGANJ, MAHOBA, UTTAR PRADESH - 210427, ON BEHALF OF MAHOBA URBAN COOPERATIVE BANK LI M ITED. I , THE ABOVE NAMED DEPONENT BEING FULLY ACQUAINTED WITH THE FA CT S, DO HEREBY SOLEMNLY AFFIRM AND STATE ON O A TH AS UNDER: - 1. THA T THE DEPONENT IS THE CEO OF KAHOBA URBAN CO - OPERATIVE BANK LTD. HAVING PRINCIPAL PLACE OF BUSINESS AT BEHIND SIIBHASH CHO W KI, MAHOBA - 210427 2. THAT THE DEPONENT BEING AGGRIEVED WITH A PPELLATE ORDER DATED 12.10. 2017 PAS$ED BY THE LD. CITJA) - II , KANPUR FOR THE AY - 2012 - 13 VIDE ORDER N O. C IT(A) - II/100 66/ACIT - S/17 - - 18 /159 BY DISMISSING T HE APPEAL BY PASSING AN EX - PARTE ORDER DUE TO NON ITA NO.32 & 33/LKW/2018& ITA NO.788/LKW/2017 PAGE 3 OF 4 APPEARANCE OF APPELLANT ON THE DATES FIXED FOR HEARING BEFORE THE LD. CI T(A) . TH A T SHRI RAJESH KUSHWAH , CA, RESIDENT OF AMBEDKAR MARKET, MAIN ROAD, O RAI, U .P - 28500 1 WAS ENGAGED IN THE INSTANT MATTER TO APPEAR BEFORE THE LD . CIT(A)| AND I WAS UNDER THE BONA FIDE BELIEF THAT PROPER COMPLIANCES WERE MADE FROM THE END OF SHR I RA J ESH KUSHWAH, CA . 4. THAT AFTER RE CEIPT OF THE ORDER OF THE LD. CI T(A) , IT CAME TO MY KNOWLEDGE THAT NO COMPLIANCE WAS MADE BY THE SAID SHRI RAJESH KUSHWAH, CA. 5. THAT ON VERIFICATION, IT WAS FOUND THAT SHRI RAJESH KUSHWAH, CA DID NOT APPEA R ON THE DATES FIXE D FOR HEARING BEFORE THE LD . CIT(A). CONSIDERING THIS FACT DEPONENT APPOINTED OTHER NEW COUNSEL CA PRAKHAR GUPTA FOR THE PURPOSE OF F ILING AND APPEARING IN APPEAL BEFORE THE INCOME TAX TRIBUNAL. 6.THAT THE DEPONENT GIVE AN UNDERTAKING T HAT PROPER COMPLIANCES SHALL BE MADE IN CASE THE ABOVE MENTIONED CASE IS REMANDED BACK TO THE LD. C I T(A ). 5 . HEARD. WE FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL S WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. MOREOVER, HE HAS NOT DECIDED THE APP EAL S AFTER DISCUSSING IN DETAIL, HIS REASONS FOR AGREEING WITH THE ASSESSMENT ORDER S . THE AFFIDAVIT, AS REPRODUCED HEREINABOVE, SHOWS THAT THE ASSESSEE WAS ALSO NOT AT FAULT FOR NOT APPEARING BEFORE THE LD. CIT(A), AS THE COUNSEL , WHO WAS ENGAGED FOR ARGUI NG THE CASES OF THE ASSESSEE BEFORE THE LD. CIT(A) , DID NOT APPEAR BEFORE HIM AND THE ASSESSEE HAS CAME TO KNOW ABOUT THIS FACT ONLY ON RECEIPT OF THE ORDERS OF THE LD. CIT(A) DISMISSING THE APPEALS OF THE ASSESSEE FOR NON - PROSECUTION . AS SUCH, ANOTHER OP PORTUNITY OF HEARING REQUIRES TO BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE S FULLY BEFORE THE LD. CIT(A). EVEN OTHERWISE, IT IS TRITE [S. VELU PALANDAR VS. DCIT 83 ITR 683 (MAD.) AND MS. SWATI PAWA VS. DY. CIT, 175 ITD 622 (DEL) ] ITA NO.32 & 33/LKW/2018& ITA NO.788/LKW/2017 PAGE 4 OF 4 AND INCUMBENT ON T HE LD CIT(A) TO DECIDE AN APPEAL ON MERIT EVEN IN THE ABSENCE OF ANY REPRESENTATION BEFORE THEM. 6 . IN VIEW OF THE ABOVE, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH ON MERIT, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. 7 . IN THE RESULT, FOR STATISTIC AL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 0 4 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 23 /0 4 / 201 9 JJ: 2304 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR