Abdul Hameed Chikwa , Kanpur V. Asstt. Commissioner of Income Tax-1, Kanpur

ITA 384/LKW/2013

• Counselvise Citation: 38423714 RSA 2013
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-06-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 30-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 384/LKW/2013 ASSESSMENT YEAR: 2003 - 04 ABDUL HAMEED CHIKWA KANPUR V. ACIT - I KANPUR PA N: AALPC4252E (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 16 0 6 2014 DATE OF PRONOUNCEMENT: 16 0 6 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY T HE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1 . BECAUSE THERE BEING NO SERVICE OF NOTICE OF HEARING ON THE ASSESSEE, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN PUTTING AN APPEARANCE BEFORE THE CIT(A), THE ORDER PASSED EXPARTE BY THE CIT(A) IS BAD IN LAW AND BE SET ASIDE. 2 . BECAUSE THE ASSESSEE BEING A HEART PATIENT AND BEING GENERALLY CONFINED TO BED, WAS NOT AWARE OF THE NOTICE IF ANY BEING SERVED, HENCE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE IN NOT APPEARING BEFORE THE CIT(A), HENCE THE ORDER BE PASSED BY THE CIT(A) BE SET ASIDE. 3 . BECAUSE THE ORDER SPEAKS OF THE ISSUE OF NOTICE ONLY AND NOT SERVICE OF NOTICE AND NO NOTICE HAVING BEING SERVED THRU THE ASSESSING OFFICER, THE APPELLANT WAS PREVENTED BY SUFFICIENT AND REASONABLE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : CAUSE, THE ORDER PASSED BY CIT(A), BE SET ASIDE. 4 . THAT THE CIT(APPEAL) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE WITHDRAWAL OF DEDUCTION U/S.80HHC AMOUNTING TO RS.30,957/ - BY THE AO WITHOUT APPRECIATING THE FACTS OF THE CASE. 5 . THAT THE CIT(APPEAL) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE RECOMPUTATION OF DEDUCTION U/S.80HHC OF THE I.T. ACT 1961 MADE BY THE AO WITHOUT GIVING THE WORKING OF THE SAME. 6 . THAT THE CIT(A) HAS ERRED ON FACTS IN CONFIRMING THE ACTION OF THE AO IS NOT ALLOWING THE DEDUCTION U/S.80HHC FOR SHORT REALIZATION OF EXPORT SALE PROCEEDS OF INVOICE NO. 642, 643, 651 AND 653 AMOUNTING TO (RS.98,10,8587 - AND RS. 1,91,228 /0) TOTALING TO RS. 1,00,02,086/ - . 7 . THAT THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN EXCLUDING THE DFRC FROM EXPORT TURNOVER FOR THE PURPOSE OF ALLOWING DEDUCTION U/S.80HHC IN VIEW OF THE AMENDED PROVISION OF SEC.28 AND 80HHC OF THE INCOME TAX ACT, 1961. 8 . THAT THE ORDER OF CIT(A) IS DEFECTIVE IN UNJUST , BAD IN LAW AND THE DEDUCTIONS CLAIMED BY THE ASSESSEE, DENIED BY THE AO AND UPHELD BY THE CIT(A), BE ALL ALLOWED. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL O F THE ASSESSEE WITHOUT GETTING NOTICE SERVED UPON THE ASSESSEE. HE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT NOWHERE IN HIS ORDER HE HAS RECORDED ABOUT SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE , THOUGH VARIOUS DATES WERE FIXED BY HIM FOR HEARING. 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A), WE FIND THAT THOUGH THE LD. CIT(A) HAS MENTIONED VARIOUS DATES OF HEARING OF THE APPEAL IN HIS ORDER , BUT HE HAS NOT RECORDED A FINDING WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE . I N THE ABSENCE OF SPECIFIC FINDING RECORDED BY THE LD. CIT(A ) , WE ARE UNABLE TO DRAW AN INFERENCE WITH REGARD TO THE SERVICE OF NOTICE OF HEARING ON THE ASSESSEE. THEREFORE, WE HAVE NO OPTION BUT TO PRESUME THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF ORDER OF THE TRIBUNAL. WE ALSO MAKE IT CLEAR THAT THE ASSESSEE SHOULD ALSO CO - OPERAT E WITH THE LD. CIT(A) IN GETTING THE APPEAL DISPOSED OF AS EARLY AS POSSIBLE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON 16.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD JUNE , 2014 JJ: 1706 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )