Sethia Enterprises, Lucknow V. IncomeTax Officer-1(4), Lucknow

ITA 76/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3600 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: SOURABH GUPTA
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT ITA NO. 76/LKW/2018 ASSESSMENT YEAR: 2014 - 15 SETHIA ENTERPRISES A - 1/4, VISHWAS KHAND GOMTI NAGAR LUCKNOW V. INCOME TAX OFFICER 1(4) RANGE I L UCKNOW T AN /PAN : ACIFS8788D (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI SOURABH GUPTA, FCA RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 21 0 2 201 9 DATE OF PRONOUNCEMENT: 22 0 2 201 9 O R D E R THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - 1, LUCKNOW DATED 8/9/2017 FOR ASSESSMENT YEAR 2014 - 15, TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLATE ORDER PASSED BY THE LD. CIT (APPEAL) WAS PASSED WITHOUT PROVIDING PROPER O PPORTUNITY TO THE APPELLANT AND TH EREFORE, THE SAME IS VOID AB - I NITIO AND BAD IN LAW. 2. THAT THE LD . COMMISSIONER OF INCOME TAX FAILED TO APPRECIATE THE MATERIAL AVAILABLE ON RECOR D AND T H E STATEMENT OF FACTS FILED BY THE APPELLANT AND HAS PASSED THE ORD ER E X - PARTE. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADDITION ON ACCOUNT OF RS. 606000/ - OUT OF SALARY EXPENSES. 4. THAT THE LD CIT(A) HAS FAILED TO APPRECIATE THAT ADHOC ADDITION OF RS. 606000/ - MADE BY THE ID. ASSESSING OFFICER IS MERELY ON SURMISES AND CONJECTURES WITHOUT PIN POINTING ANY ITEM OF INADMISSIBLE NATURE AND IS NOT TENABLE IN LAW. ITA NO.76/LKW/2018 PAGE 2 OF 4 5. THAT THE ORDER PASSED BY THE LD. CIT (A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS THE SAME HAS BE EN PASSED WITHOUT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT. 6. THAT THE APPELLANT CRAVES LEAVES TO ADD, ALTER, AMEND, AND WITHDRAW ANY OR ALL OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 2 . THE ASSESSEE'S APPEAL IS DELAYED BY SIXTEEN DAYS . AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED BY THE PARTNER, SHRI DINESH KUMAR , T HE CONTENTS OF WHICH READ AS UNDER: - SUB: APPLICATION FOR CONDONATION OF DELAY IN FILING APPEAL - REG. FOR THE ASSESSMENT YEAR 2014 - 15 DEAR SIRS, WITH REFERENCE TO THE ABOVE CITED MATTER , THE FOLLOWING FACTS ARE SUBMITTED HEREWITH FOR THE BENCH'S KIND CONSID ERATION. THAT THE APPELLANT HAD FILED THE ABOVE APPE AL ON 5/2/2018 WHEREAS THE SAME WAS DUE ON 20/01/2018, RESU LTING IN A DELAY OF 16 DAYS. THE DELAY IS ON ACCOUNT OF THE DELAY CAUSED FOR GETTING PROPER PROFESSIONAL ADVICE BY THE APPELLANT , SINCE THEY WERE NOT AWARE THAT THE ORDER WAS APPEALABLE. IT WAS ONLY AFTER PROFE SSIONAL CONSULTATION THAT THE APPELLANT PROCEEDED TO FILE AN APPEAL, A ND THIS R ESULTED I N THE DELAY BY 16 DAYS. IN VIEW OF THE ABOVE CIRCUMSTANCES, IT IS H UMBLY PRAYED THAT THE DELAY IN FILING THE APPEAL MAY KINDLY BE CONDON ED. TH ANKING YOU, SD/ - YO URS FAITHFULLY, DATED 5/2/2018 3 . IN VIEW OF THE ABOVE CONTENTS OF THE APPLICATION FOR CONDONAT ION OF DELAY, IT IS SEEN THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME. EVEN OTHERWISE, IT CANNOT BE GAINSAID THAT THE ASSESSEE WOULD STAND TO GAIN ANYTHING BY DELAYING ITA NO.76/LKW/2018 PAGE 3 OF 4 THE FILING OF ITS OWN APPEAL. THE DELAY IS INADVE RTENT. ACCORDINGLY, THE DELAY OF SIXTEEN DAYS IN FILING THE APPEAL IS CONDONED. 4 . BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL FOR NON PROSECUTION, OBSERVING THAT THE APPELLANT WILLFULLY HAS NOT MADE COMPLIANCE OF THE S TATUTORY NOTICE ISSUED ON 24/7/2017, 8/8/2017 AND 21/8/2017. SUCH SERVICE OF NOTICES HAS, HOWEVER, BEEN DISPUTED BY THE ASSESSEE. 5 . HEARD. I FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. MOREOVER, HE HA S NOT DECIDED THE APPEAL AFTER DISCUSSING IN DETAIL, HIS REASONS FOR AGREEING WITH THE ASSESSMENT ORDER. AS SUCH, ANOTHER OPPORTUNITY OF HEARING REQUIRES TO BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE FULLY BEFORE THE LD. CIT(A). EVEN OTHERWISE, IT IS TRITE [S. VELU PALANDAR VS. DCIT 83 ITR 683 (MAD.)] AND INCUMBENT ON THE LD CIT(A) TO DECIDE AN APPEAL ON MERIT EVEN IN THE ABSENCE OF ANY REPRESENTATION BEFORE THEM. 6 . IN VIEW OF THE ABOVE, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) TO BE DECID ED AFRESH ON MERIT, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAI LABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. 7 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 / 02 /201 9 . SD/ - [ A. D. JAIN ] VICE PRESIDENT DATED: 22 ND FEBRUARY , 201 9 JJ: 2102 ITA NO.76/LKW/2018 PAGE 4 OF 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR