M/s Sadhan, Bhubaneswar V. CIT, Bhubaneswar

ITA 62/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4405 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2011
• Court: TRIBUNAL
• Department Lawyers: M R
• Assessee Lawyers: B PANDA
• Keywords: Principle of natural justice; Condonation of delay
• Section: 80G; 12AA; 263; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER / I.T.A.NO. 62/CTK/2011 / ASSESSMENT YEAR 2008 - 09 M/S.S ADHAN, PLOT NO.11, SAMANTA VIHAR, NALCO CHOWK, BHUBANESWAR 751 017 PAN: AADTS0635G - - - VERSUS - COMMISSIONER OF INCOME - TAX, BHU BANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.PANDA, AR / FOR THE RESPONDENT: / SHRI M.R.PANIGRAHI, DR / ORDER . . . , SHRI K.S.S. PRASAD RAO, JUDICIAL MEMBER . THIS APPEAL IS FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX DT.29.12.2010, RAISING THE FOLLOWING GROUNDS OF APPEAL. I) FOR THAT, THE ORDER OF THE ID. COMMISSIONER OF IN COME TAX PASSED VIDE DATED 29.12.2010 WITHOUT EXAMINING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE MINUTES ETC. FILED STATING THE UNPLEASANT SITUATION PREVAILED DUE TO COMMUNAL AND ETHNIC VIOLENCE SHOULD HAVE BEEN DULY APPRECIATED AND VERIFIED AND ORD ER SHOULD NOT HAVE BEEN PASSED ARBITRARILY WITHOUT PROPER CONFRONTATION OF THE FACTS, THUS HAS TO BE QUASHED AND VACATED. II) FOR THAT THE FORUM BELOW SHOULD HAVE APPRECIATED THE SITUATION FOR CONDONATION OF DELAY AND TO ENTERTAIN THE PETITION AND THE G ROUNDS URGED AFTER VERIFYING THE SITUATIONS PREVAILED AS WELL AS THE AMOUNT KEPT FOR CARRYING ON FURTHER CONSTRUCTION OF ORPHANAGE AND OTHER RELATED MATTERS BUT FOR THE VIOLENCE OCCURRED IN THE MONTH OF AUGUST 2008 AND THE MEMBERS OF THE TRUST WERE DISTURB ED AND SCARED DUE TO THE ETHNIC PROBLEMS AND SOCIAL IMBALANCE CAUSED DELAY IN THE MATTER BUT THE REJECTION OF APPLICATION FOR CONDONATION OF DELAY FILED IN FORM NO.10 FOR THE ASSESSMENT YEAR 2008 - 09 THE I.T. ACT SHOULD NOT HAVE BEEN MADE. III) FOR THAT T HE ORDER PASSED IS UNWARRANTED AND WITHOUT APPLICATION OF MIND, HENCE HAS TO BE QUASHED, VACATED AND JUSTICE SHOULD HAVE BEEN AFFORDED WHEN THE NORMAL LIFE OF THE I.T.A.NO. 62/CTK/2011 2 PEOPLE WAS IN DANGER BUT REJECTION OF THE APPLICATION FOR CONDONATION OF DELAY IS UNLAWFUL AN D HAS TO BE ALLOWED IN FAVOUR OF THE APPLICANT SINCE THE SITUATION IS TENSE NOW EVEN. IV) FOR THAT, THE ORDER HAS BEEN MADE WITHOUT APPLICATION OF MIND AND IN MECHANICAL MANNER, THUS HAS TO BE QUASHED AND OTHER GROUNDS WILL BE URGED AT THE TIME OF HEARIN G. 2. BOTH PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE ASSESSEE AND THEIR LEGAL IMPLICATIONS. 3. DURING THE COURSE OF HEARING THE LEARNED AR OF THE ASSESSEE HAS RELIED ON THE CBDT CIRCULAR NO.273 DT.3.6.1980 AND ORDER F.NO.120/57/80 - IT(A - I) DT .3.6.1980 AND CONTENDED THAT THE ACTION OF THE LEARNED CIT IS IN DEVIATION OF THE ABOVE CIRCULARS AND ORDER. AS CAN BE SEEN FROM THE ORDER, IT IS CLEAR THAT THE LEARNED CIT WHILE PASSING THE ORDER THOUGH OBTAINED A REPORT FROM THE ASSESSING OFFICER HAS NO T PUT TO THE ASSESSEE ABOUT THE REPORT OF THE ASSESSING OFFICER , WHICH IS IN CLEAR DEVIATION OF THE PRINCIPLES OF NATURAL JUSTICE WHICH THE AUTHORITIES OF THE INCOME - TAX DEPARTMENT INCLUDING THE LEARNED CIT ARE EXPECTED TO FOLLOW. THEREFORE, THE LEARNED AR OF THE ASSESSEE SOUGHT FOR SETTING THE ORDER OF THE LEARNED CIT WITH A DIRECTION TO ALLOW THE PETITION FILED BY THE ASSESSEE AFTER ACCEPTING THE FORM NO.10 BY CONDONING THE DELAY IN FILING THE SAME. 4. CONTRARY TO THIS, THE LEARNED DR HAS VEHEMENTLY SUPPO RTED THE ORDER PASSED BY THE LEARNED CIT AND SOUGHT FOR DISMISSAL OF THE ASSESSEES APPEAL BY UPHOLDING THE ORDER OF THE LEARNED CIT ON THE BASIS OF LEARNED CIT NOT CONDONING THE DELAY. 5. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIB UNAL AND ANALYZING THE SAME IN THE LIGHT OF THE RIVAL SUBMISSIONS OF THE PARTIES AS WELL AS THE CBDT CIRCULAR NO.273 DT.3.6.1980 AND ORDER F.NO.120/57/80 - IT(A - I) DT.3.6.1980, IT IS FOUND THAT THE ORDER OF THE LEARNED CIT IS PASSED BEFORE HEARING THE ASSESS EE ON THE REPORT GIVEN BY THE I.T.A.NO. 62/CTK/2011 3 ASSESSING OFFICER IN PURSUANCE OF THE REQUISITION OF THE LEARNED CIT. THIS PRACTICALLY AMOUNTS TO NOT AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE AS THE SAID REPORT OF THE ASSESSING OFFICER WAS RELIED ON BY THE LEARNED CI T BEFORE HEARING THE ASSESSEE ABOUT THAT. THIS IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, WHICH THE AUTHORITIES OF THE INCOME - TAX DEPARTMENT INCLUDING THE LEARNED CIT ARE EXPECTED TO FOLLOW. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE ORDER PASSED BY THE LEARNED CIT IS NOT AT ALL SUSTAINABLE FOR LEGAL SCRUTINY. WE FOUND THAT SINCE THE ASSESSEE WAS NOT HEARD ON THE REPORT OF THE ASSESSING OFFICER REQUISITIONED BY THE LEARNED CIT BEFORE PASSING THE IMPUGNED ORDER, IT IS JUST AND PROPER TO RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT TO PUT THE REPORT OF THE ASSESSING OFFICER TO THE ASSESSEE AND AFTER HEARING THE ASSESSEE ON THE SAID REPORT AND OTHER CONTENTIONS THAT THE ASSESSEE MAY RAISE BEFORE HIM AND APPRECIATE THE PRAYER OF THE ASSESSEE AS PE R LAW AND PASS CONSEQUENTIAL ORDER AS PER LAW. WITH THIS DIRECTION, THE MATTER IS RESTORED TO THE FILE OF THE LEARNED CIT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 13 TH MAY, 2011 S D/ - S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER. ( ) DATE: 13 TH MAY, 2011 - ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 62/CTK/2011 4 COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : M/S.SADHAN, PLOT NO.11, SAMANTA VIHAR, NALCO CHOWK, BHUBANESWAR 751 017 2 / THE RESPONDENT: COMMISSIONER OF INCOME - TAX, BHUBANESWAR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY I.T.A.NO. 62/CTK/2011 5 ( C ) AN ORDER PASSED BY A COMMISSIONER 76 [UNDER SECTION 12AA 76A [ OR UNDER CLAUSE ( VI ) OF SUB - SECTION (5) OF SECTION 80G ] OR] UNDER SECTION 263 77 [OR UNDER SECTION 271 ] 78 [OR UNDER SECTION 272A ] 79 [***] OR AN ORDER PASSED BY HIM UNDER SECTION 154 AMENDING HIS ORDER UNDER SECTION 263 ] 80 [OR AN ORDER PASSED BY A CHIEF COMMISSIONER OR A DIRECTOR GENERAL OR A DIRECTOR UNDER SECTION 272A .]