M/s Ajit Chemicals Pvt. Ltd., Kanpur V. Dy. Commissioner Of Income Tax, Kanpur

ITA 765/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83419 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Assessee Lawyers: PRADEEP SETH
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

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.765/LKW/2014 ASSESSMENT YEAR:2003-04 M/S AJIT CHEMICALS PVT. LTD. 104/430, P. ROAD KANPUR V. DY. CIT RANGE 6 KANPUR PAN/PAN:AABCP1869Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. PRADEEP SETH, C.A. RESPONDENT BY: SHRI. K.C. MEENA, D.R. DATE OF HEARING: 17 11 2014 DATE OF PRONOUNCEMENT: 25 11 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. THAT THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL EX-PARTE FOR DEFAULT WITHOUT ALLOWING THE ASSESSEE THE STATUTORY OPPORTUNITY OF BEING HEARD. 2. THAT THE LEARNED C.I.T. (APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN PROCEEDING TO DECIDE THE APPEAL EX-PARTE MERELY ON THE BASIS THAT NOTICES DATED 30.11.2013 AND 18.12.2013 WERE ISSUED FOR COMPLIANCE ON 28.11.2013 AND 26.12.2013 RESPECTIVELY WITHOUT VERIFYING WHETHER THE SAID NOTICES HAD ACTUALLY BEEN SERVED ON THE ASSESSEE, WHICH AS PER THE ASSESSEE'S RECORD WERE NEVER RECEIVED BY THE ASSESSEE AND IN PASSING THE ORDER AFTER A LAPSE OF OVER 6 MONTHS. 3. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON :- 2 -: FACTS IN NOT DECIDING THE APPEAL ON MERIT AS REQUIRED BY LAW, THOUGH CLAIMING SO IN THE APPELLATE ORDER, AND IN NOT STATING FACTS REGARDING EACH GROUND OF APPEAL NOR HIS DECISION ON SUCH GROUND NOR DETAILED REASONS FOR HIS DECISION IN RESPECT OF EACH GROUND, CONTRARY TO THE PROVISIONS OF SECTION 250(6) OF THE INCOME-TAX ACT AND PRINCIPLES OF NATURAL JUSTICE AND MERELY OBSERVING THAT THE ASSESSMENT ORDER HAD BEEN FOUND CORRECT. 4. THAT THE LEARNED C.I.T. (APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN IGNORING THE FACTS STATED IN THE ASSESSMENT ORDER AND THE STATEMENT OF FACTS FILED BY THE ASSESSEE BEFORE HIM AND OBSERVING THAT THE DETAILS AND EVIDENCES IN SUPPORT OF THE GROUNDS OF APPEAL ARE NOT FILED, WHICH IS CONTRARY TO FACTS ON RECORD. 5. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN NOT DECIDING THE GROUND NO.1 BEFORE HIM CHALLENGING THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS U/S 147. 6. THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF THE DEPRECIATION OF RS.1,70,040/- ON MACHINES TAKEN BY THE ASSESSEE UNDER FINANCE LEASING FROM M/S ELECTRONICS LEASING AND FINANCE LTD. 7. THAT THE APPELLATE ORDER IS ARBITRARY, EXCESSIVE, BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. DURING COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE OF HEARING FOR THE DATES MENTIONED BY THE LD. CIT(A). THEREFORE, THE ABSENCE ON BEHALF OF THE ASSESSEE ON THE DATES FIXED FOR WAS NOT INTENTIONAL, BUT ON ACCOUNT OF NON-COMMUNICATION OF THE DATE OF HEARING. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION THAT THE LD. CIT(A) HAS FIXED THE APPEAL FOR HEARING ONLY FOR TWO DATES AND WITHOUT VERIFYING THE FACT WITH REGARD TO THE SERVICE OF NOTICE OF HEARING, HE DISMISSED THE APPEAL EX- PARTE. IT WAS FURTHER CONTENDED THAT EVEN IF THE ASSESSEE DOES NOT APPEAR, :- 3 -: THE LD. CIT(A) IS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT AND HE HAS NO JURISDICTION TO DISMISS THE APPEAL IN LIMINE. IN THE LIGHT OF THESE FACTS, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIM FOR ADJUDICATING THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT UNDISPUTEDLY THE LD. CIT(A) HAS FIXED THE APPEAL FOR HEARING ONLY FOR TWO DATES, ON WHICH NONE APPEARED ON BEHALF OF THE ASSESSEE. NOTHING IS PLACED ON RECORD WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:25 TH NOVEMBER, 2014 JJ:1711 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR