Dinesh Kumar Dikshit, Lucknow V. Additional Commissioner Of Income Tax, Lucknow

ITA 629/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83438 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 31-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SHANKARDHAR
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.629/LKW/2014 ASSESSMENT YEAR:2008-09 DINESH KUMAR DIKSHIT 532-C/211, VISHNUPURI COLONY EXTENSION-III, ALIGANJ, LUCKNOW V. ADDL. CIT, RANGE 3 LUCKNOW TAN/PAN:AEJPD0233P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. S. SHANKARDHAR, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 28 11 2014 DATE OF PRONOUNCEMENT: 10 12 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. BECAUSE THE ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY IS ILLEGAL, CRYPTIC AND HAS BEEN PASSED WITHOUT APPLICATION OF MIND. 2. BECAUSE THE FIRST APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THAT THE ASSESSING AUTHORITY HAS ERRED ON FACTS AND IN LAW REJECTING BOOKS OF ACCOUNTS WITHOUT FINDING ANY DEFECT OR MISTAKE IN THE MAINTENANCE OF BOOKS OF ACCOUNTS. 3. BECAUSE THE LEARNED FIRST APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THAT THE RETURN INCOME TAX HAS BEEN ARBITRARILY STRETCH TO RS. 1428770/- AFTER MAKING ARBITRARILY ADDITION OF RS. 582361/-. 4. BECAUSE THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT :- 2 -: ADJUDICATED UPON ANY OF THE GROUNDS TAKEN IN THE MEMO OF THE APPEAL. 5. BECAUSE THE LEARNED FIRST APPELLATE AUTHORITY DID NOT PROVIDE REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT AND PREFERRED TO DECIDE THE APPEAL IN HASTE ON JUST ONE DATE WITHOUT EXAMINING THE BOOKS OF ACCOUNTS WHICH ARE ALREADY WITH THE DEPARTMENT. 2. DURING THE COURSE OF HEARING OF THE APPEAL, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THERE IS A DELAY OF 452 DAYS IN FILING OF THE APPEAL. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY STATING THEREIN THAT AFTER RECEIPT OF APPEAL PAPERS I.E. THE ORDER OF THE LD. CIT(A) WITH THE RELEVANT RECORD, THE LD. COUNSEL FOR THE ASSESSEE, SHRI. R. A. SHANKHDHAR HAS SUFFERED SOME CARDIAC PROBLEM AND CONTINUED FOR A LONGER PERIOD AND THEREAFTER HE SUFFERED CERVICAL SPONDYLITIS. ON ACCOUNT OF HIS ILL HEALTH, THE APPEAL COULD NOT BE PREPARED. AS SOON AS HE RECOVERED FROM THE ILNESS, HE PREPARED THE APPEAL AND FILED BEFORE THE TRIBUNAL. THEREFORE, THE DELAY IN FILING OF THE APPEAL WAS NOT INTENTIONAL, BUT DUE TO THE ABOVE REASONS. 3. THE LD. D.R. FORMALLY OPPOSED THE REQUEST FOR CONDONATION OF DELAY. 4. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT IN SUPPORT OF THE APPLICATION FOR CONDONATION OF DELAY AN AFFIDAVIT OF THE ADVOCATE WAS ALSO FILED. SINCE THE ASSESSEE HAS EXPLAINED THE REASONS FOR DELAY IN FILING OF THE APPEAL, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 5. SO FAR AS THE APPEAL ON MERIT IS CONCERNED, IT HAS BEEN CONTENDED BEFORE US THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR PRODUCING THE BOOKS OF ACCOUNT AND THE RELEVANT BILLS AND VOUCHERS. THOUGH THE ASSESSEE WAS READY TO PRODUCE THE RELEVANT BOOKS OF ACCOUNT ALONG WITH COMPLETE DETAILS :- 3 -: AND BILLS AND VOUCHERS BEFORE THE ASSESSING OFFICER, BUT SUFFICIENT TIME WAS NOT GIVEN TO HIM. BEFORE THE LD. CIT(A), THE ASSESSEE WAS NOT AFFORDED SUFFICIENT TIME TO PLACE THE RELEVANT EVIDENCE IN SUPPORT OF THE BOOK RESULTS DECLARED BY HIM. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED TO THE LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE LIGHT OF THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. 6. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 7. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE RECORD, WE FIND THAT THE ASSESSEE WAS NOT AFFORDED PROPER OPPORTUNITY TO PRODUCE THE RELEVANT EVIDENCE AND BOOKS OF ACCOUNT BEFORE THE LD. CIT(A) IN SUPPORT OF THE BOOK RESULTS DECLARED BY HIM. WE, THEREFORE, IN THE INTEREST OF JUSTICE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH DECEMBER, 2014 JJ:2811 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR