Sahara Prime City Limited, Lucknow V. The DCIT, Lucknow

ITA 707/LKW/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62157 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-06-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A : LUCKNOW BEFORE SHRI S. K. YADAV, JUDICIAL MEMBER AND SHRI B. R. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 707 /LKW/1 1 ASSESSMENT YEAR: 2009 - 2010 SAHARA PRIME CITY LIMITED, VS. DY. C.I.T. (TDS), HARHARPUR BAKSHI KA TALAB, LUCKNOW. LUCKNOW. PAN:LKNSO8844D (APPELLANT) (RESPONDENT) APPELLANT B Y : SHRI J. J. MEHROTRA , C.A. RESPONDENT BY : SMT. MANJU THAKUR, D.R. DATE OF HEARING : 19 / 06 /201 2 DATE OF PRONOUNCEMENT : 19 /06/2012 ORDER PER S. K. YADAV, J.M,: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 200 9 - 20 10 ON VARIOUS GROUNDS BUT THEY ALL RELATE TO THE DISMISSAL OF THE APPEAL BEING BARRED BY LIMITATION AFTER REJECTING THE APPLICATION FOR CONDONATION OF DELAY MOVED BY THE ASSESSEE. 2. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE BEFO RE CIT(A) WAS LATE BY 48 DAYS. ALONG WITH THE MEMO OF APPEAL , THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL STATING THEREIN THAT THE CONCERNED STAFF, WHO RECEIVED THE ORDER, WENT ON 2 UNPLANNED LEAVE BECAUSE OF WHICH TH E ORDER WAS NOT FORWARDED TO THE PERSON WHO LOOKS AFTER TAXATION AFFAIRS. IT IS ONLY ON HIS RETURN FROM LEAVE THE ORDER WAS FORWARDED AND THE APPEAL WAS PREPARED AND FILED. IT WAS ALSO STATED THAT IF AN AFFIDAVIT IS REQUIRED, IT CAN ALSO BE FILED. THE CI T(A) WAS NOT CONVINCED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE AND HE ACCORDINGLY DISMISSED THE APPLICATION FOR CONDONATION OF DELAY. CONSEQUENTLY, THE APPEAL WAS DISMISSED BEING BARRED BY LIMITATION. 3. NOW THE ASSESSEE IS BEFORE US WITH THE SUB MISSION THAT THE ASSESSEE HAS PROPERLY EXPLAINED THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). THE REASON FOR DELAY WAS ALSO PROPERLY EXPLAINED AND THE ASSESSEE WAS ALSO READY TO FILE AN AFFIDAVIT OF THE CONCERNED PERSON BUT THE CIT(A), WITHOUT ASSIGN ING ANY REASON, HAS REJECTED THE APPLICATION FOR CONDONATION OF DELAY AND DISMISSED THE APPEAL BEING BARRED BY LIMITATION. 4. THE LEARNED D.R. ON THE OTHER HAND HAS SUBMITTED THAT ORDER REJECTING THE APPLICATION FOR CONDONATION OF DELAY IS NOT APPEALABLE ORDER, THEREFORE, THE APPEAL BEFORE THE TRIBUNAL IS NOT MAINTAINABLE. 5. IN REBUTTAL, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE JUDGMENT OF THE APEX COURT IN THE CASE OF MELA RAM AND SONS VS COMMISSIONER OF INCOME - TAX [1956] 29 ITR 607 (SC) AND JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS MUKANDILAL 3 HARBANSLAL [1957] 32 ITR 1 (ALL) IN WHICH IT HAS BEEN CATEGORICALLY HELD THAT ORDER REJECTING THE APPLICATION OF CONDONATION OF DELAY IS AN APPEALABLE ORDER. 6. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO RIVAL SUBMISSIONS AND CAREFUL PERUSAL OF THE ORDER OF THE LOWER AUTHORITIES AND JUDGMENTS REFERRED TO BY THE PARTIES, WE FIND THAT THE ISSUE ; WHETHER THE ORDER REJECTING THE APPLICATION FOR CONDONATION OF DELAY IS APPEALABLE BEFORE THE TRIBUNAL, WAS ADJUDICATED BY THE HON'BLE APEX COURT WAY BACK IN 1956 IN THE CASE OF MELA RAM AND SONS (SUPRA) IN WHICH THEIR LORDSHIPS HAVE HELD THAT THE ORDER O F AAC HOLDING THAT THERE WERE NO SUFFICIENT REASONS FOR EXCUSING IN FILING THE APPEAL AND REJECTING THE APPEALS AS TIME - BARRED UNDER SECTION 31 OF THE INCOME - TAX ACT IS APPEALABLE BEFORE THE TRIBUNAL . FOLLOWING THE AFORESAID JUDGMENT, THE HON'BLE JURISDI CTION HIGH COURT OF ALLAHABAD IN THE CASE OF COMMISSIONER OF INCOME - TAX VS MUKANDILAL HARBANSLAL (SUPRA) ANSWERED THE QUESTION; W HETHER AN APPEAL AGAINST AN ORDER OF THE AAC REFUSING TO ADMIT AN APPEAL ON THE GROUND THAT IT IS BARRED BY TIME LIES TO THE TR IBUNAL , IN AFFIRMATIVE. SINCE THE ORDER OF CIT(A) REJECTING THE APPLICATION FOR CONDONATION OF DELAY IS AN APPEALABLE ORDER BEFORE THE TRIBUNAL, WE, REJECT THE OBJECTION RAISED BY THE REVENUE AND ADMIT THE APPEAL FOR HEARING. 7. ON MERIT WE HAVE ALSO E XAMINED THE ORDER OF CIT(A) AND WE FIND THAT THE DELAY WAS OF 48 DAYS, WHICH WAS DULY EXPLAINED BY THE ASSESSEE. IT HAS BEEN REPEATEDLY HELD BY THE HON'BLE APEX COURT AND VARIOUS HIGH COURTS THAT WHILE ENTERTAINING THE REQUEST FOR CONDONATION OF DELAY, T HE LIBERAL APPROACH SHOULD BE 4 ADOPTED. SINCE DELAY WAS PROPERLY EXPLAINED, THE CIT(A) SHOULD HAVE CONDONED THE DELAY AND ADJUDICATED THE APPEAL ON MERIT BUT HE DID NOT DO SO. WE, THEREFORE, DO NOT AGREE WITH THE REASONING OF CIT(A) REFUSING THE CONDONATION OF DELAY. WE, ACCORDINGLY, SET ASIDE THE ORDER OF CIT(A) AND CONDONE THE DELAY IN FILING THE APPEAL BEFORE HIM AND RESTORE THE MA TTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH ON MERIT AFTER AFFORDING A PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE O PEN COURT ON 19/06/2012 ) SD/. SD/. ( B. R. JAIN ) ( S. K. YADAV ) ACC OUNTANT MEMBER JUDICIAL MEMBER DATED: 20/06/2012 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR