M/s York Polymers, Ludhiana V. ITO, Ludhiana

ITA 823/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86137 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 823/CHD/2013 ASSESSMENT YEAR : 2009-10 YORK POLYMERS, VS. THE INCOME TAX OFFICER, PLOT NO.104, INDUSTRIAL AREA, WARD III(3), PHASE 1, CHANDIGARH. LUDHIANA. EARLIER AT #424-424-A, MODEL TOWN EXTN., LUDHIANA. PAN: AAAFY7192D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SMT.JYOTI KUMARI, DR DATE OF HEARING : 21.01.2015 DATE OF PRONOUNCEMENT : 23.01.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)-II, LUDHIANA DATED 23.11.2012 FOR ASSESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN DECIDING THE APPEAL E X-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF HEARING WHICH IS AR BITRARY AND UNJUSTIFIED. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS I N UPHOLDING THE DISALLOWANCE OF DEDUCTION UNDER SECTION 80IC RESULT ING IN ADDITION OF RS.82,33,825/- WHICH IS ARBITRARY AND UNJUSTIFIE D. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN HOLDING THAT THE ITEM MANUFACTURED BY THE ASSESS EE FALLS WITHIN 2 THE SCOPE OF ITEM NO.20 OF SCHEDULE XIII I.E 'PLAST IC AND ARTICLE THEREOF COVERED UNDER EXCISE DUTY CLASSIFICATION 39 09 TO 39 15 WHICH IS WRONG AND UNJUSTIFIED IT. THE ITEM MANUFAC TURED ARE NOT COVERED UNDER SCHEDULE XIII AND ARE OUTSIDE THE EXC ISE DUTY CLASSIFICATION OF ITEM 20 OF THIS SCHEDULE. 4. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS THUS UNTENABLE. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE ASSESSEE IN COLUMN NO.9 OF FORM NO.36 OF APPEAL PAP ER MENTIONED 21.1.2013 AS DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST, HOWEVER, THE APPEAL IS FILED IN T HE OFFICE OF THE TRIBUNAL ON 6.8.2013. ACCORDING TO THE OFFICE , THE APPEAL IS TIME BARRED BY 137 DAYS. THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY IN WHICH IT IS STATED THAT THE APPEAL PAPERS AFTER PREPARATION WERE HANDED OVE R TO ARTICLE CLERK FOR FILING THE APPEAL THROUGH THE ADV OCATE SHRI TEJ MOHAN SINGH BUT DUE TO ILL HEALTH OF THE FATHER OF SHRI VINEET KHURANA, CHARTERED ACCOUNTANT, HE COULD NOT CHECK WHETHER THE APPEAL WAS FILED ACTUALLY OR NOT. THE ARTICLE CLERK WENT ON LEAVE FOR PREPARATION OF HIS EXAMS U P TO MAY 2013 AND WHEN IN JULY, 2013 SHRI VINEET KHURANA WAS CALLED BY THE ASSESSING OFFICER FOR DEPOSIT OF OUTSTANDING DEMAND, IT CAME TO KNOW THAT THE ARTICLE CLERK FORGOT TO GIVE APPEAL PAPERS TO SHRI TEJ MOHAN SINGH FOR FILING THE APPEA L BEFORE THE TRIBUNAL. THEREFORE, THE APPEAL IS LATER ON FILED ON 6.8.2013. 3. THE LEARNED COUNSEL FOR ASSESSEE REITERATED THE AVERMENTS CONTAINED IN THE APPLICATION FOR CONDONAT ION OF APPEAL AND SUBMITTED THAT THE APPLICATION IS SUPPOR TED BY 3 AFFIDAVITS OF SHRI VINEET KHURANA, CHARTERED ACCOUN TANT AND SHRI SAURABH WALIA, ARTICLE CLERK AND SUBMITTED THA T FOR THE NEGLIGENCE OF THE LEARNED COUNSEL FOR ASSESSEE, THE ASSESSEE MAY NOT SUFFER. 4. THE LEARNED D.R FOR THE REVENUE OPPOSED THE REQU EST FOR CONDONATION OF DELAY. 5. ON CONSIDERATION OF THE ABOVE FACTS AND THE AVER MENTS WHICH ARE CONTAINED IN THE APPLICATION FOR CONDONAT ION OF DELAY SUPPORTED BY THE AFFIDAVIT OF THE CHARTERED A CCOUNTANT WHO HAS PREPARED THE APPEAL PAPERS AND AFFIDAVIT OF ARTICLE CLERK, WE ARE SATISFIED THAT THE ASSESSEE WAS PREVE NTED BY SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN T IME AS THE ASSESSEE HAS NO INTENTION OF NOT FILING THE APPEAL IN TIME. THE TRIBUNAL FEE WAS ALSO PAID ON TIME. THE DELAY IS NOMINAL. THEREFORE, THE DELAY IN FILING THE APPEAL IS CONDONED. 6. BRIEFLY, THE FACTS OF THE CASE ON THE ABOVE GROU NDS OF APPEAL PROCEEDINGS ARE THAT THE ASSESSEE CHALLENGED THE DISALLOWANCE ON DEDUCTION CLAIMED UNDER SECTION 80I C OF THE ACT BEFORE THE LEARNED CIT (APPEALS). HOWEVER, ON SEVERAL DAYS EXCEPT OF SEEKING ADJOURNMENT, THE ASSESSEE DI D NOT ARGUED THE APPEAL AND THE ASSESSEE WAS PROCEEDED EX -PARTE ULTIMATELY. THE LEARNED CIT (APPEALS) IN THE ABSE NCE OF ANY SUBMISSION FROM THE SIDE OF THE ASSESSEE CONFIRMED THE ORDER OF THE ASSESSING OFFICER AND DISMISSED THE APPEAL O F THE ASSESSEE. 4 7. THE LEARNED COUNSEL FOR ASSESSEE AT THE OUTSET S UBMITTED THAT ON IDENTICAL ISSUE THE ASSESSING OFFICER HAS A LLOWED CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IC IN SUBSEQUENT TWO ASSESSMENT YEAR 2010-11 AND 2011-12 AND SUBMITTED THAT DUE TO REASONABLE CAUSE THE CASE COU LD NOT BE REPRESENTED BEFORE THE LEARNED CIT (APPEALS). THER EFORE, THE MATTER MAY BE REMANDED TO THE FILE OF THE LEARNED C IT (APPEALS). 8. THE LEARNED D.R FOR THE REVENUE, HOWEVER, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED T HAT THE ASSESSEE DELIBERATELY DID NOT APPEAR BEFORE THE LEA RNED CIT (APPEALS). THEREFORE, THE MATTER MAY NOT BE REMAND ED. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE ASSESSEE HAS VEHEMENTLY ARGUED THAT IN SUBSEQUENT ASSESSMENT YEARS THE ASSESSING OFFICER HAS ALLOWED SIMILAR CLAIM OF THE ASSESSEE ON SAME FACTS FOR DEDUCTION UNDER SECTION 80IC OF THE ACT. HOWEVER, THE RECORD REVEALED THAT THE AS SESSEES COUNSEL DID NOT APPEAR BEFORE THE LEARNED CIT (APPE ALS) ON MANY DAYS. CONSIDERING THE FACT THAT IN SUBSEQUEN T YEAR SIMILAR CLAIM OF THE ASSESSEE HAS BEEN ALLOWED ON I DENTICAL FACTS BY THE ASSESSING OFFICER HIMSELF, THEREFORE T HE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE CIT (A PPEALS). HOWEVER, FOR NON-APPEARANCE BEFORE THE LEARNED CIT (APPEALS) THE ASSESSEE SHALL HAVE TO PAY COST FOR THE SAME. 10. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LEAR NED CIT (APPEALS) AND RESTORE THE APPEAL OF THE ASSESSEE TO HIS FILE 5 WITH COST OF RS.10,000/- WHICH THE ASSESSEE SHALL P AY TO THE REVENUE DEPARTMENT WITHIN ONE MONTH FROM THE DATE O F THE ORDER. THE CIT (APPEALS) SHALL GIVE REASONABLE SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND SHAL L LOOK INTO THE MATTER AS ARGUED BEFORE US THAT THE ASSESSING O FFICER HAS ALLOWED SIMILAR CLAIM OF THE ASSESSEE IN SUBSEQUENT ASSESSMENT YEARS. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES WITH COST. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JANUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23 RD JANUARY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH