Shri Laxmi Shankar Sahu, Kanpur V. Asstt. Commissioner of Income Tax, Kanpur

ITA 906/LKW/2014

• Counselvise Citation: 90623714 RSA 2014
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-10-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 22-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 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.906/LKW/2014 ASSESSMENT YEAR 2011-12 ACIT, CIRCLE - 5, KANPUR VS SHRI LAXMI SHANKAR SAHU, 51/23, NAYAGANJ, KANPUR PIN 208001 PAN AGKPS 8047 H (RESPONDENT) (APPELLANT) SHRI ABHINAV MEHROTRA , ADVOCATE APPELLANT BY SHRI RAJNISH YADAV , DR RESPONDENT BY 14 / 10 /2015 DATE OF HEARING 21 / 10 /2015 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-II, PASSED EX-PARTE QUA THE ASSESSEE, AS SAILING THE ORDER OF LD. CIT(A) MAINLY ON FOLLOWING GROUNDS WHICH ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS PROCEEDED ON ERRONEOUS BELIEF AND MISCONCEPTION OF LAW IN MAKING DISALLOWANCE OF LEAV E ENCASHMENT RS.87,008. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) IGNORED THE BIN DINGING NATURE OF THE TH E JUDGMENT OF THE HON'BLE APEX COURT UNDER ART. 141 O F THE CONSTITUTION OF INDIA WHICH APPROVES THE PERQUI SITE IN THE NATURE OF LEAVE ENCASHMENT AS TAX- EXEMPT AN D 2 HENCE THE SAME IS VOILATIVE OF THE CONSTITUTIONAL M ANDATE AND TANTAMOUNT TO CONTEMPT OF THE HON'BLE APEX COUR T. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. A.O. ERRED IN NOT CONSIDERING THE ORDER OF THE HON' BLE SUPREME COURT WHICH CLEARLY STATES THAT ALL THE RECOMMENDATIONS OF THE SHETTY COMMISSION REPORT SUBJECT TO VARIOUS MODIFICATIONS BE ACCEPTED. 4. THAT THE LD. CIT(A) APPROVES A WRONG OBSERVATI ON OF THE AO WHEN THE SAME RECORDS THAT RS. 26,887.00 HAVE BE EN REFUNDED TO THE APPELLANT WHILE NO SUCH PAYMENT HAS BEEN MADE TILL THE DATE OF FILING APPEAL. 5. THAT THE LD. A.O. IS ERRED IN STARTING PROCEEDIN GS U/S 271(L)(C) OF THE I.T.ACT,1961 SINCE NEITHER ANY INC OME HAS BEEN CONCEALED NOR INACCURATE PARTICULARS HAVE BEEN FURNISHED. 6. BECAUSE THE ORDER PASSED BY LD. CIT(A), ON THI S COUNT IS BAD IN LAW. 7. THE APPELLANT CRAVES FOR LEAVE TO ADD/AMEND THE GROUNDS OF APPEAL, WITH THE PERMISSION, OF THE HONBLE BENCH . 2. DURING THE COURSE OF HEARING, ATTENTION WAS INVI TED TO THE ORDER OF LD. CIT(A) WITH THE SUBMISSION THAT THE CIT(A) H AS RECORDED DATES OF HEARING OF NOTICE BUT HAS NOT RECORDED ANY FACT WITH REGARD TO SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE CIT(A) HAS DISMISSED THE APPEAL SUMMARILY WITHOUT DEALING ISSU ES ON MERIT. THEREFORE, THE ORDER OF LD. CIT(A) DESERVES TO BE S ET ASIDE. 3. LD. DR SIMPLY PLACED RELIANCE UPON THE ORDER OF LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF LD. CIT(A ), WE FIND THAT THE CIT(A) HAS RECORDED VARIOUS DATES OF ISSUANCE O F NOTICE BUT NOTHING HAS BEEN RECORDED IN RESPECT OF SERVICE OF NOTICE O F HEARING UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF TH E VIEW THAT LD. CIT(A) 3 HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT AF FORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE WITH THE DIRECTION TO READJUDICATE THE APPEAL AFRESH AFTER AFFORDING OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED 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: 21/10/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGIST RAR