M/s Magrath Propeties Pvt. Ltd., Kanpur V. Deputy Commissioner of Income Tax, Central Circle- 01, Kanpur

ITA 713/LKW/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5562 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN
• Keywords: Opportunity of being heard; Additional evidence; Reasonable cause; Set aside

Judgement Text

I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS.:2009-10,10-11,15-16 & 16-17 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS:2009-10, 10-11, 15-16 & 16-17 M/S MAGRATH PROPERTIES PVT. LTD. 117/618, PANDU NAGAR, KANPUR. PAN:AACCM 6577 D VS. DY.C.I.T. - 1, CENTRAL CIRCLE-1, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAI NST THE SEPARATE ORDERS OF CIT(A), ALL DATED 31/10/2018. THE ASSESS EE HAS TAKEN SIMILAR GROUNDS OF APPEAL IN ALL CASES WHICH WERE HEARD TOG ETHER THEREFORE, A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. FOR THE SAKE OF CONVENIENCE, THE GROUNDS OF APPEAL TAKEN BY THE ASS ESSEE IN I.T.A. NO.712/LKW/2018 ARE REPRODUCED BELOW: BECAUSE 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DECI DING THE APPEAL EX-PARTE, ON THE GROUND THAT NOTICE DATED 25 .09.2018 APPELLANT BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C. A. RESPONDENT BY SHRI A. K. BAR, CIT (D.R.) DATE OF HEARING 21/08/2019 DATE OF PRONOUNCEMENT 22/08/2019 I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS.:2009-10,10-11,15-16 & 16-17 2 ISSUED THROUGH E-MAIL ON THE ADDRESS MENTIONED IN A PPEAL MEMO AND ANOTHER NOTICES FOR HEARING ON 23.10.2018 AND 31.10.2018, REMAINED 'UNCOMPLIED WITH', AS NEITHER ANYBODY ATTENDED ON BEHALF OF THE APPELLANT NOR ANY APPLICA TION SEEKING ADJOURNMENT, WAS FILED; 2. THE APPELLANT HAS GOT ITS OFFICE 'SET UP' AT BAN GALORE AND OWING TO NON-ACCESSIBILITY OF E-MAIL, THE APPELLANT HAD FAILED TO TAKE COGNIZANCE OF NOTICES, IF ANY, SENT FROM THE O FFICE OF ID. CIT(A), KANPUR AND ACCORDINGLY IT SHOULD HAVE BEEN HELD THAT ALLEGED NON-APPEARANCE/NON-FILING OF APPLICATION FO R ADJOURNMENT IS SUFFICIENT AND REASONABLE CAUSE FOR NON- COMPLIANCE; 3. VARIOUS CASE LAWS AS HAVE BEEN REFERRED AND RELI ED UPON BY THE CIT(A), AS MENTIONED IN PARA 4.01 OF THE APP ELLATE ORDER (UNDER APPEAL HERE) ARE NOT APPLICABLE ON THE FACTS OF THE CASE, AND THE APPELLANT DESERVED AN OPPORTUNITY OF BE ING HEARD, BEFORE REJECTION OF ITS CLAIM FOR EXEMPTI ON/DEDUCTION UNDER SECTION 80-IA(4)(III) OF THE ACT; WITHOUT PREJUDICE TO THE AFORESAID 4. THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE AND MISSED TO NOTE THAT:- (A)THE APPELLANT HAD SETUP, DEVELOPED AND MAINTAINE D AN 'INDUSTRIAL PARK' UNDER 'INDUSTRIAL PARK SCHEME, 20 02'; (B)THE PROJECT WAS COMPLETED IN THE YEAR 2003 IN SU PPORT OF WHICH COMPLETION/OCCUPANCY CERTIFICATE DATED 17.06. 2003 WAS ISSUED VIDE COMMISSIONER APPROVAL NO.2278 DATED 13. 06.2003 (WHICH HAD DULY BEEN PLACED ON RECORD) BEFORE THE A SSESSING OFFICER (AS PER NARRATION APPEARING IN THE ASSESSME NT ORDER ITSELF, WHICH WAS SUBJECT MATTER OF 1 ST APPEAL; (C)THE APPELLANT HAD DULY APPLIED TO THE MINISTRY O F COMMERCE AND INDUSTRY, NEW DELHI FOR SANCTION OF INDUSTRIAL PARK VIDE NON-AUTOMATIC ROUTE, WHICH WAS SANCTIONED ALSO; I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS.:2009-10,10-11,15-16 & 16-17 3 (D)IT WAS TO PROVIDE 4 UNITS (AS DEFINED IN THE POL ICY) AND IT HAD DULY PROVIDED IPS - 2 WHICH WAS TO BE FILED EVERY S IX MONTH (TWICE IN A YEAR) ALTHOUGH BELATEDLY; (E)THERE WAS DELAY IN FILING IPS-2 FOR WHICH CONDON ATION APPLICATION WAS FILED, WHICH WAS DULY APPROVED BY T HE MINISTRY OF COMMERCE AND INDUSTRY, WITH THE RESULT THAT 'IND USTRIAL PARK' DEVELOPED BY THE APPELLANT WAS FULLY APPROVED; AND ACCORDINGLY THE CLAIM FOR ADMISSIBILITY OF BENE FIT UNDER SECTION 80-IA(4)(III) SHOULD HAVE BEEN IPSO-FACTO M ADE AVAILABLE TO THE APPELLANT; 5. THE CLAIM OF THE APPELLANT FOR DEDUCTION UNDER S ECTION 80- IA(4)(III) AMOUNTING TO RS.8,79,80,270/- COULD NOT HAVE BEEN DENIED IN THE SET ASIDE PROCEEDINGS IN VIEW OF EXPR ESS DIRECTIONS OF HON'BLE IT AT, WHILE SETTING ASIDE TH E ASSESSMENT ORDER PASSED EARLIER; 6. IN ANY CASE, RELIEF GIVING PROVISIONS HAVE TO BE CONSTRUED LIBERALLY, IN VIEW OF LARGE NUMBER OF CASE LAWS, AS ARE LISTED ON PAGES 8 & 9 OF THE ASSESSMENT ORDER THAT HAD BEEN I MPUGNED IN THE 1 ST APPEAL; 7. THE APPELLANT DISPUTES THE COMPUTATION OF INCOME AS HAS BEEN ARRIVED AT WITHOUT ALLOWING STATUTORY DEDUCTIO N WHICH IT WAS ENTITLED TO UNDER SECTION 80-IA(4)(III) AND IT DENIES THE INCOME TAX LIABILITY FASTENED ON IT (WITH REFERENCE TO THE INCOME COMPUTED/ASSESSED IN THE SET ASIDE PROCEEDINGS); 8. THE ORDER APPEALED AGAINST IS CONTRARY TO THE FA CTS, LAW APPLICABLE THERETO AND PRINCIPLES OF NATURAL JUSTIC E. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT HE W ILL NOT BE PRESSING GROUND NOS. 1 TO 3 AND THEREFORE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 3. LEARNED A. R. SUBMITTED THAT THE SOLE GRIEVANCE BEFORE THE BENCH IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS NOT AL LOWED BENEFIT U/S I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS.:2009-10,10-11,15-16 & 16-17 4 80IA(4)(III) OF THE ACT AND IN THIS RESPECT OUR ATT ENTION WAS INVITED TO THE FINDINGS OF LEARNED CIT(A) WHEREIN HE HAS HELD THAT SINCE THE PROJECT WAS NOT APPROVED AND NOTIFIED THEREFORE, THE DEDUCTION U/S 80IA(4)(III) OF THE ACT WAS NOT AVAILABLE TO THE ASSESSEE. LEARNED A. R. I N THIS RESPECT INVITED OUR ATTENTION TO PAGE NO. 2 OF THE PAPER BOOK WHEREIN T HE CBDT VIDE LETTER DATED 28/06/2019 HAD FORWARDED TO PR. CIT, THE COPY OF NOTIFICATION NO.47/2019 DATED 20/06/2019 NOTIFYING ELIGIBILITY O F THE ASSESSEE U/S 80IA(4)(III) OF THE ACT AND, THEREFORE, IT WAS PRAY ED THAT THE APPROPRIATE RELIEF MAY BE GRANTED TO THE ASSESSEE. 4. LEARNED D. R., ON THE OTHER HAND, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND ARGUED THAT IN THE ABSENCE OF NOTIFICATION, THE LEARNED CIT(A) HAS RIGHTLY DISMISSED THE APPEALS OF THE ASS ESSEE. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE CIT(A) HAS DISM ISSED THE APPEALS OF THE ASSESSEE FOR GRANT OF DEDUCTION U/S 80IA(4)(III) OF THE ACT SOLELY ON THE BASIS THAT THE PROJECT OF THE ASSESSEE WAS NOT APPROVED A ND NOTIFIED BY CBDT. THE LEARNED CIT(A) HAS PASSED THIS ORDER ON 31/10/2 018 WHEREAS LEARNED A. R. HAD FILED THE COPY OF CBDT LETTER ON 28/06/20 19 WHEREIN THE CBDT HAS FORWARDED A COPY OF NOTIFICATION NO.47/2019 TO PR. CIT WHEREIN THE PROJECT OF THE ASSESSEE HAS BEEN NOTIFIED. THIS NOTIFICATI ON CAME AFTER THE LEARNED CIT(A) HAD PASSED THE IMPUGNED ORDERS ON 31/10/18 A ND THOUGH LEARNED A. R. HAD NOT FILED APPLICATION FOR ADMISSION OF AD DITIONAL EVIDENCE BUT SINCE THIS DOCUMENT IS POST PASSING OF THE ORDER BY LEARN ED CIT(A) AND WAS NOT AVAILABLE BEFORE THE AUTHORITIES BELOW THEREFORE, T HIS DOCUMENT HAS TO BE TREATED AS ADDITIONAL EVIDENCE WHICH, IN THE FACTS AND CIRCUMSTANCES OF THE CASES IS ADMITTED BUT SINCE THIS HAS NOT BEEN EXAMI NED BY LEARNED CIT(A) I.T.A. NOS.712 TO 715/LKW/2018 ASSTT. YRS.:2009-10,10-11,15-16 & 16-17 5 THEREFORE, WE REMIT THE CASES BACK TO CIT(A) WHO SH OULD GO THROUGH THE NOTIFICATION REGARDING APPROVAL OF PROJECTS OF THE ASSESSEE AND SHOULD DECIDE IN ACCORDANCE WITH LAW. NEEDLESS TO SAY, THE ASSES SEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, ALL THE APPEALS ARE PARTLY ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 22/08/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:22/08/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR