M/s Alig Tannery, Kanpur V. Asstt. Commissioner of Income Tax-3, Kanpur

ITA 63/LKW/2015

• Counselvise Citation: 6323714 RSA 2015
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Assessee Lawyers: PRADEEP SETH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 80IB; 147

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. 63/LKW/2015 ASSESSMENT YEAR: 2004 - 05 M/S ALIG TANNERY 11/27-B, OWALTOLI KANPUR V. ACIT - 3 KANPUR T AN /PAN : AACFA4441 (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. PRADEEP SETH, FCA RESPONDENT BY: SHRI. VIVEK MISHRA, CIT (DR) DATE OF HEARING: 17 03 201 5 DATE OF PRONOUNCEMENT: 26 0 3 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH AR E AS UNDER:- 1) THAT THE LEARNED C.I.T.(APPEALS) HAS ERRED IN L AW AND ON FACTS IN NOT APPRECIATING THAT THE PROCEEDINGS U/S 147 OF THE I.T. ACT TO ASSESS THE INCOME AFTER DISALLOWANCE OF THE CLAI M OF DEDUCTION U/S 80IB IN RESPECT OF DUTY DRAW BACK AMO UNTING TO RS. 1,63,041/- WERE WITHOUT JURISDICTION. 2) THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ER RED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE CONDITIONS PR E-REQUISITE UNDER 1ST PROVISO TO SECTION 147 FOR ACQUIRING JURI SDICTION U/S 147 WERE NOT SATISFIED IN THE ASSESSEE'S CASE AND T HEREFORE THE PROCEEDINGS TAKEN U/S 147 WERE BARRED BY LIMITATION . :-2-: 3) THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FAC TS IN CONFIRMING THE DISALLOWANCE OF ASSESSEE'S CLAIM FOR DEDUCTION U/S 80IB TO THE EXTENT OF RS.1,63,041/- RELATING TO EXPORT INCENTIVE ON ACCOUNT OF DUTY DRAW BACK. 4) THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ER RED IN LAW AND ON FACTS IN APPLYING THE JUDGEMENT OF HON'BLE SUPRE ME COURT IN THE CASE OF LIBERTY INDIA VS. C.I.T. 317 ITR 218 (S.C.) WHICH IS DISTINGUISHABLE ON THE FACTS OF THE ASSESSEE' S CASE. 5) THAT THE ORDER OF THE C.I.T.(APPEALS) IS ARBITR ARY, UNJUST, EXCESSIVE, BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A ) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL OF THE AS SESSEE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R. OPPOSED THE CONTENTIONS OF THE LD. COU NSEL FOR THE ASSESSEE WITH THE SUBMISSION THAT THE ASSESSEE DID NOT APPEAR DESPITE AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT( A), WE FIND THAT THE LD. CIT(A) HAS MENTIONED IN HIS ORDER THAT THE LAST NOTICE ISSUED BY HIM HAS NOT BEEN RESPONDED BY THE ASSESSEE, BUT IT IS N OT CLEAR FROM HIS ORDER WHETHER NOTICE OF HEARING WAS EVER SERVED UPON THE ASSESSEE. FROM A PERUSAL OF THE ORDER OF THE LD. CIT(A), WE FIND THA T PROPER OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE TO PROSECUTE ITS CASE. THEREFORE, WE ARE OF :-3-: THE VIEW THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE. ACCORDINGLY, WE SET ASID E THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DI RECTION TO DISPOSE OF THE APPEAL ON MERIT AFTER AFFORDING AN OPPORTUNITY OF B EING HEAD TO THE ASSESSEE, BY PASSING A REASONED ORDER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNI L KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26 TH MARCH, 2015 JJ:1703 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR