Shri Dilip Kumar Shahi, Lucknow V. Income Tax Officer, Lucknow

ITA 68/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4445 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.68/LKW/2016 ASSESSMENT YEAR 2010-11 INCOME TAX OFFICER, RANGE-5(1), LUCKNOW- 226001 VS . SHRI DILIP KUMAR SHAHI 153-SHAKTI NAGAR, FAIZABAD ROAD, LUCKNOW-226016 PAN AGQPS 5959 Q (RESPONDENT) (APPELLANT) SHRI SHUBHAM RASTOGI , CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 11/04/2016 DATE OF HEARING 13 / 0 4 /2016 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-, LUCKNOW, CONFIRMING THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. THIS APPEAL IS FILED LATE BY 325 DAYS FOR WHICH AN APPLICATION FOR CONDONATION OF DELAY WAS ALSO FILED BY THE ASSESSEE ON THE GROUND THAT THE CIT(A) HAS PASSED AN EX-PARTE ORDER WITHOUT GETTING THE NOTICE OF HEARING SERVED UPON THE ASSESSEE. THEREFO RE, ASSESSEE WAS NOT AWARE ABOUT THE ORDER OF THE CIT(A) PASSED CONFIRMI NG THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 2. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT AT T HE RELEVANT POINT OF TIME, WHEN THE APPEAL WAS PENDING BEFORE THE CIT(A) ASSESSEE WAS 2 SUFFERING FROM MENTAL DEPRESSION, THEREFORE, COULD NOT CONCENTRATE ON THE LITIGATION PENDING BEFORE THE AUTHORITIES. IT WAS F URTHER REQUESTED THAT IN THE LIGHT OF THESE FACTS DELAY IN NOT FILING IN APP EAL MAY KINDLY BE CONDONED. 3. LD. COUNSEL FOR THE ASSESSEE FURTHER INVITED OUR ATTENTION TO THE FACT THAT IN QUANTUM APPEAL, THE TRIBUNAL HAS SET ASIDE THE ORDER OF LD. CIT(A) AS IT WAS PASSED EX-PARTE AGAINST THE ASSESSEE HAVI NG REALIZED THAT THE ASSESSEE WAS NOT PROPER STATE OF MIND AND THE CIT(A ) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT AFFORDING PROPER OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE APPEAL IN QUANTUM IS PENDING BEFORE THE C IT(A), THE PRESENT ORDER OF THE CIT(A) IN THE PENALTY MATT ER MAY KINDLY BE SET ASIDE AND RESTORE THE MATTER TO THE FILE OF THE CIT (A) FOR READJUDICATION AFTER DISPOSAL OF THE APPEAL IN QUANTUM. 4. LD. DR OF THE REVENUE SIMPLY PLACED RELIANCE UPO N THE ORDER OF THE CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWER AUTHORITIES, IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT IN THE ORD ER OF THE CIT(A) HAS NOT GIVEN ANY FINDING WITH RESPECT TO SERVICE OF NOTICE UPON THE ASSESSEE. THERE IS ALSO NO EVIDENCE ON RECORD FOR SERVICE OF ORDER OF THE CIT(A) UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, CONTENTION O F THE ASSESSEE THAT THE APPEAL WAS DISPOSED OF WITHOUT AFFORDING PROPER OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE AND EVEN THE ORDER OF THE CIT(A) WA S NOT COMMUNICATED TO THE ASSESSEE. ACCORDINGLY, FINDING FORCE IN THE CON TENTION OF THE ASSESSEE, WE CONDONE THE DELAY IN FILING OF THE APPEAL. SO FA R AS THE MERIT OF THE APPEAL IS CONCERNED, WE FIND THAT QUANTUM APPEAL WA S SET ASIDE BY THE TRIBUNAL AND THE MATTER IS SUB JUDICE BEFORE THE CI T(A). THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE CIT(A), THIS APPEAL DESERVES TO BE SET ASIDE. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A ) AND RESTORE THE MATTER 3 TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO REA DJUDICATE THE ISSUE OF PENALTY U/S 271(1)(C) OF THE ACT AFTER DISPOSAL OF THE APPEAL IN QUANTUM. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 13/04/2016 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR