M/s Fatte Guru Govind Singh & Co., Burhanpur V. The Addl. CIT, Range Khandwa HQ Indore, Khandwa

ITA 528/IND/2010

• Counselvise Citation: 52822714 RSA 2010
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 03-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: S S DESHPANDE

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.528/IND/2010 A.Y. 2006-07 M/S FATEH GURU GOVIND SINGH & CO. BURHANPUR PAN AAAFF 5721F :: APPELLANT VS ADDL. CIT KHANDWA :: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE RESPONDENT BY SHRI ARUN DEWAN DATE OF HEARING 7.06.2012 DATE OF PRONOUNCEMENT 7.06.2012 O R D E R PER JOGINDER SINGH , JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 29.3.2010 MAINLY ON THE GROUND THAT THE LEARNED FIR ST APPELLATE AUTHORITY ERRED IN NOT CONDONING THE DELAY OF FOUR DAYS RESULTING INTO NON-ADMISSION OF APPEAL AND CONSEQUENT DENIAL OF EXEMPTION U/S 80IA OF THE ACT. 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I S.S. DESHPANDE, LD. COUNSEL FOR THE ASSESSEE AND SHRI AR UN DEWAN, LEARNED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE DELAY OF FOUR DAYS IN FILING T HE APPEAL BEFORE THE LEARNED CIT(A) MAY BE CONDONED SO THAT THE ASSE SSEE MAY NOT BE DENIED ITS LEGAL RIGHT OF MAKING EFFECTIVE REPRE SENTATION ON MERIT. ON THE OTHER HAND, THE LEARNED SENIOR DR, SHRI ARUN DEWAN, DEFENDED THE IMPUGNED ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE CLAIMED DEDUCTION U/S 80IA FOR AN AMOUNT O F RS.13,58,561/- BY CLAIMING THAT THE ASSESSEE HAD SE T UP A NEW GINNING AND PRESSING UNIT AND COMMENCED PRODUCTION SINCE 28.1.1996. THE LEARNED ASSESSING OFFICER DENIED TH E DEDUCTION ON THE GROUND THAT NEW MACHINERY WAS NOT USED BY TH E ASSESSEE, THEREFORE, THE REQUIRED CONDITIONS STIPULATED IN TH E SECTION WERE NOT FULFILLED. ON APPEAL, THE LEARNED CIT(A) DID N OT CONDONE THE DELAY OF FOUR DAYS IN FILING THE APPEAL BEFORE HIM BY OBSERVING THAT SUFFICIENT CAUSE FOR NOT PRESENTING THE APPE AL IN TIME WAS NOT PRODUCED, HENCE, THE APPEAL WAS NOT ADMITTED FO R CONSIDERATION AGAINST WHICH THE ASSESSEE IS IN APPE AL BEFORE THE 3 TRIBUNAL. WE FIND THAT THE LEARNED CIT(A) HAS DELIB ERATED UPON THE EXPRESSION GOOD FAITH AS DEFINED IN CLAUSE (H ) OF SECTION 2 OF THE LIMITATION ACT. THE WHOLE ISSUE REVOLVES AROUN D SERVICE OF DEMAND NOTICE. THERE IS ALSO A MENTION OF TELEPHONI C CONVERSATION ABOUT THE DATE OF RECEIPT OF DEMAND NO TICE. HOWEVER, KEEPING IN VIEW THE TOTALITY OF FACTS AND THE CIRCUMSTANCES NARRATED BEFORE US AND ALSO MENTIONED IN THE IMPUGNED ORDER, WE ARE OF THE CONSIDERED OPINION TH AT SUBSTANTIAL CAUSE OF JUSTICE IS MORE IMPORTANT AND NO PERSON SHOULD BE CONDEMNED UNHEARD. THE PRINCIPLE OF NATUR AL JUSTICE CANNOT BE IGNORED, THEREFORE, WITHOUT GOING INTO MU CH DELIBERATION AND MERITS OF THE APPEAL, THE DELAY IS CONDONED. HOWEVER, IN THE INTEREST OF THE JUSTICE, THE APPEAL IS REMANDED BACK TO THE FILE OF THE LEARNED CIT(A) FOR FRESH AD JUDICATION, ON MERIT, IN ACCORDANCE WITH LAW FOR WHICH DUE OPPORTU NITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CL AIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 7.6.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 7.6.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-77