M/s Eldeco Sidcul Industrail Park Ltd., New Delhi V. Dy. Commissioner of Income Tax, Kanpur

ITA 655/LKW/2013

• Counselvise Citation: 65523714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR ANAND KUMAR AGARWAL
• Keywords: Search and seizure; Period of limitation; Reasonable cause; Time period of passing order; 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.655 & 766/LKW/2013 ASSESSMENT YEAR:2008-09 & 2007-08 M/S ELDECO SIDCUL INDUSTRIES PARK LTD. 201/212, SPLENDOR FORUM JASOLA DISTRICT CENTRE NEW DELHI V. DCIT RANGE VI KANPUR TAN/PAN:AABCE6152D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AJAY VOHRA, ADVOCATE RESPONDENT BY: DR. ANAND KUMAR AGARWAL, CIT (DR) DATE OF HEARING: 28 04 2015 DATE OF PRONOUNCEMENT: 05 06 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A). 2. APPEAL IN I.T.A. NO. 655/LKW/2013 IS FILED LATE BY 101 DAYS, FOR WHICH ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY WITH THE SUBMISSION THAT THE LD. CIT(A) HAS PASSED EX-PARTE ORDER WITHOUT SERVICE OF VALID NOTICE HEARING UPON THE ASSESSEE. SUBSEQUENT TO THE FILING OF THE APPEAL BEFORE THE LD. CIT(A), CBI HAS CARRIED OUT RAID AT THE OFFICE OF THE ASSESSEE IN DELHI AND UTTARAKHAND AND AT THE RESIDENCE OF THE DIRECTOR/SENIOR OFFICIAL INCLUDING THE OFFICE AND RESIDENT OF SHRI. ANIL JAISWAL, COUNSEL OF THE ASSESSEE. THESE FACTS WERE REPORTED IN THE NEWSPAPER. IN VIEW OF THE AFORESAID EVENTS, THE RELATIONS BETWEEN THE APPLICANT AND SHRI. ANIL JAISWAL BECAME STRAINED AND HE DID NOT WILLFULLY COMPLY WITH THE NOTICE :- 2 -: RECEIVED BY HIM FROM THE OFFICE OF THE LD. CIT(A). THEREFORE, THE LD. CIT(A) HAS ALSO PASSED AN EX-PARTE ORDER AND THE ASSESSEE COULD NOT RECEIVE THE COPY OF THE ORDER OF THE LD. CIT(A). THE OFFICE OF SHRI. AJAY JAISWAL COURIERED THE COPY OF THE ORDER TO THE ASSESSEE ONLY AFTER THE LAPSE OF THE LIMITATION PERIOD OF 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF THE LD. CIT(A) ON 8.7.2013. ON RECEIPT OF THIS ORDER OF THE LD. CIT(A), THE ASSESSEE IMMEDIATELY FILED THE APPEAL BEFORE THE TRIBUNAL. THEREFORE, THE DELAY WAS NOT INTENTIONAL BUT DUE TO AFORESAID REASONS. 3. FINDING FORCE IN THE CONTENTIONS OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS A REASONABLE CAUSE FOR DELAY IN FILING OF THE APPEAL. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. ON MERIT, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE HAS RAISED A CLAIM UNDER SECTION 80-IA(4)(III) OF THE ACT WHICH WAS DENIED BY THE ASSESSING OFFICER ON THE GROUND THAT NO NOTIFICATION OR APPROVAL WAS ISSUED BY THE CENTRAL GOVERNMENT IN FAVOUR OF THE ASSESSEE TO OPERATE INDUSTRIAL PARK ON SPECIAL ECONOMIC ZONE. FOR THE SIMILAR REASON, THE APPEAL WAS ALSO DISMISSED BY THE LD. CIT(A). BUT NOW THE NOTIFICATION HAS BEEN ISSUED IN FAVOUR OF THE ASSESSEE AND COPY OF THE NOTIFICATION IS PLACED ON RECORD. COPY OF THE LETTER ENCLOSING THE NOTIFICATION ISSUED BY THE BOARD TO THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX ON 13.1.2015 IS PLACED ON RECORD AND THROUGH THIS NOTIFICATION THE DATE OF COMMENCEMENT OF INDUSTRIAL PARK WAS GIVEN DATED 30.3.2009, THOUGH THE ASSESSMENT YEARS INVOLVED ARE 2007-08 AND 2008-09. SINCE THE NOTIFICATION WAS NOT TAKEN INTO ACCOUNT WHILE ADJUDICATING THE CLAIM OF DEDUCTION UNDER SECTION 80-IA(4)(III) OF THE ACT, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. IT IS ALSO NECESSARY IN THE LIGHT OF THE FACT THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL EX-PARTE. :- 3 -: 5. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). HE, HOWEVER, DID NOT DISPUTE THE FACT OF ISSUANCE OF NOTIFICATION BY THE CBDT. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THIS DEVELOPMENT, WE ARE OF THE VIEW THAT THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IA(4)(III) OF THE ACT WAS NOT EXAMINED IN THE LIGHT OF THE NOTIFICATION ISSUED BY THE CBDT, AS IT WAS ISSUED LATER ON AND WAS COMMUNICATED TO THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX ON 13.1.2015. THEREFORE, THE ISSUE IS REQUIRED TO BE LOOKED INTO AFRESH BY THE ASSESSING OFFICER. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) IN BOTH THE ASSESSMENT YEARS AND RESTORE THE MATTER TO THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IA(4)(III) OF THE ACT IN THE LIGHT OF THE NOTIFICATION ISSUED BY THE BOARD IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, BOTH THE APPEALS ARE 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:5 TH JUNE, 2015 JJ:2904 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR :- 4 -: ASSISTANT REGISTRAR