M/s Shiv Gulam Sharma, Kanpur V. Dy. Commissioner Of Income Tax, Kanpur

ITA 896/LKW/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4826 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWATI RATNA
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 148; 11

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.896/LKW/2014 ASSESSMENT YEAR:2005-06 M/S SHIV GULAM SHARMA SHISHU SHIKSHA NIKETAN SAMITI 128/169/19, K BLOCK KIDWAI NAGAR, KANPUR V. DY. CIT CIRCLE 1 KANPUR TAN/PAN:AAETS9942H (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SMT. SWATI RATNA, D.R. DATE OF HEARING: 30 12 2015 DATE OF PRONOUNCEMENT: 13 01 2016 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 THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT (A) II KANPUR WAS WRONG IN LAW AND ON FACTS IN DISMISSING THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER & REASONABLE OPPORTUNITY OF BEING HEARD AND THE EXISTENCE OF REASONABLE CAUSE FOR NOT ATTENDING ON THE DATE OF HEARING OF APPEAL. 2. THE LEARNED CIT(A) WAS WRONG IN LAW AND ON FACTS IN NOT CONSIDERING PROPERLY THE FACTS OF THE CASE ABOUT THE CLAIMS OF VARIOUS REVENUE AND CAPITAL EXPENSES INCURRED FOR RUNNING THE SOCIETY FOR EDUCATIONAL PURPOSES COVERED U/S 10(23) AND SECTION 11 & 13 OF THE ACT DUE TO WHICH NO INCOME WAS CHARGEABLE TO TAX. :- 2 -: 3. THAT THE LEARNED CIT (A) SHOULD HAVE HELD THAT SINCE THERE WAS NO ESCAPEMENT OF ANY INCOME , THE PROVISIONS OF SECTION 148 WERE NOT APPLICABLE. 4. THAT THE DISALLOWANCE OF CLAIM OF SALARY OF RS.625431/- & OTHER EXPENSES WERE UNJUSTIFIED AS THE SAME WERE ALLOWABLE DEDUCTION IN THE CASE OF SOCIETY. 5. THAT IN ANY CASE & WITHOUT PREJUDICE THE LEARNED CIT(A) /AO SHOULD HAVE ALLOWED THE CLAIM OF DEPRECIATION OF RS.2119976/- AS PER OBSERVATIONS & AND FINDING GIVEN WAS MADE IN PARA 6 OF THE ASSTT. ORDER. 6. THAT IN ANY CASE & WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE ASSESSED INCOME AND QUANTUM OF ADDITION MADE BY AO & SUSTAINED BY CIT (A) ARE MUCH TOO HIGH & EXCESSIVE. 7. THE ORDERS OF THE AUTHORITIES BELOW WERE AGAINST LAW FACTS & PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ONLY TWO NOTICES WERE SENT BY THE LD. CIT(A), BUT THERE IS NO FACTUAL RECORDING IN THE ORDER OF THE LD. CIT(A) WITH REGARD TO THE VALID SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE LD. CIT(A) HAS ALSO SUMMARILY DISPOSED OF THE APPEAL DISMISSING THE SAME WITHOUT DEALING WITH THE ISSUES ON MERIT. 3. SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE ARE OF THE VIEW THAT LET THIS MATTER BE SENT TO THE LD. CIT(A) FOR ADJUDICATION OF THE ISSUES RAISED BEFORE HIM AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. :- 3 -: CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR ADJUDICATION OF THE APPEAL AFTER AFFORDING 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 CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:13 TH JANUARY, 2016 JJ:3012 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR