Ashoka Foods & Dehydrates Sansthan, Kanpur V. Astt. Commissioner of Income Tax (Exem.),

ITA 758/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4649 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-03-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 14-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 758/LKW/2015 ASSESSMENT YEAR: 2012 - 13 ASHOKA FOODS & DEHYDRATES SANSTHAN 51/92, NAYAGA NJ KANPUR V. ACIT (EXEMPTION) GHAZIABAD T AN /PAN : AAATA1998D (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 14 03 201 6 DATE OF PRONOUNCEMENT: 17 03 201 6 O R D E R PER SU NIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 01. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DECIDING THE APPEAL EX - PARTE, DISMISSING THE SAME IN DEFAU LT ON ACCOUNT OF NON - APPEARANCE WHICH DECISION OF THE CIT(A) IS ERRONEOUS AND BAD IN LAW. 02. BECAUSE THE NOTICE U/S 250 DATED 27.10.2015 ISSUED BY THE CIT(A) FIXING THE CASE FOR 06.11.2015 BUT THE CIT(A) WAS NOT AVAILABLE IN THE OFFICE ON THE DATE FIX ED, HENCE THE ORDER PASSED IS BAD IN LAW, BE QUASHED. 03. BECAUSE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF THE AO IN WRONGLY INTERPRETING THE : - 2 - : PROVISIONS OF SEC. 10(23B) OF THE IT. ACT 1961 THEREBY DENYING THE EXEMPTION TO THE ASSESSEE. 04. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE AO DENYING THE EXEMPTION CLAIMED U/S.10(23B) INSPITE OF ALL THE CONDITION NECESSARY FOR CLAIMING EXEMPTION HAVING BEEN FULFILLED AND COMPLIED WITH. 05. B ECAUSE THE CIT(A) HAS NOT APPRECIATED THE FACTS AND THE AO HAS WRONGLY HELD THAT THE ASSESSEE SOCIETY IS NOT ENGAGED IN DEVELOPMENT ACTIVITIES OF KVIC. 06. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE DETERMINATION OF TOTAL INCOME AT RS.6,39,8587 - AND TAX LIABILITIES OF RS.2,66,917/ - WHICH IS CONTRARY TO THE PROVISIONS OF LAW, HENCE THE ORDER PASSED BE QUASHED. 07. BECAUSE IN ANY CASE AND IN ALL CIRCUMSTANCES OF THE CASE, THE ORDER PASSED IS BAD IN LAW AND BE QUASHED. 08. B ECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSEE SOCIETY WAS ALREADY ENJOYING EXEMPTION U/S. 10(23B) OF THE ACT 1961 UPTO A.Y. 2007 - 08 AND ON EXPIRY OF THE PERIOD HAD ALREADY APPLIED FOR RENEWAL ON 14.092009 WHICH RENEWAL WAS FORTHCOMING. 09. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT THERE BEING NO FAILURE ON THE PART OF THE ASSESSEE TO OBTAIN THE REQUISITE APPROVAL FROM KVIC, AS APPROVED FOR EARLIER YEARS THE THEORY AND PRINCIPLES OF DECLINE OF LEGITIMATE EXPECTATION WOULD BE APPLICA BLE AND THE CIT(A) SHOULD OUGHT TO HAVE ALLOWED THE RELIEF AS CLAIMED BY EXEMPTING THE ENTIRE INCOME U/S.10(23B) OF THE ACT, 1961. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WIT H THE SUBMISSION : - 3 - : THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN THE INTER EST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. 3 . THE LD. D.R. HAS ALSO AGREED TO THIS SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT DEALING WITH THE ISSUES ON MERIT. W E ARE OF THE VIEW THA T SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE APPEAL AFRESH AFTER AFFORDI NG AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y A DAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH MARCH , 2016 JJ: 1403 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR