M/s. Moradabad Zila Sehkari Bank Ltd., Moradabad V. Addl. CIT, Moradabad

ITA 948/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4796 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 23-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUDRUN NEHAR
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME - TAX APPELLATE TRIBUNAL, DELHI BENCH E , NEW DELHI BEFORE : SHRI I.C. SUDHIR , JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 948/DEL./2014 ASSESSMENT YEAR: 2008 - 09 MORADABAD ZILA SEHKARI BANK LTD., COURT ROAD, MORADABAD. PAN AAABM0292N (APPELLANT) VS. ADDL. CIT, RANGE - 1, MORADABAD. (RESPONDENT) APPELLANT BY SH. PIYUSH KAUSHIK, ADVOCATE RESPONDENT BY MS. GUDRUN NEHAR, SR. DR ORDER PER L.P. SAHU, A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT(A), BAREILLY DATED 08.02.2013 FOR THE ASSESSMENT YEAR 2008 - 09 ON THE FOLLOWING GROUNDS : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW TO DISMISS THE APPEAL FOR NON - COMPLIANCE OF NOTICES & ON WRONG APPRECIATION OF FACTS OF DIFFERENT ASSESSMENT YEAR AND DID NOT DECIDE THE APPLICATION TO RECALL HIS ORDER. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW TO UPHOL D THE ORDER OF THE ASSESSING OFFICER WHO WRONGLY HAS HELD THAT THE ALLOWABLE DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE INCOME TAX ACT, 1961 IS ONLY 7.5% OF TOTAL INCOME OR 10% OF AVERAGE RURAL ADVANCE, WHICHEVER IS HIGHER WHILE THE DEDUCTION FOR BOTH THE AMOUNT IS DATE OF HEARING 03.08.2017 DATE OF PRONOUNCEMENT 22 .08.2017 ITA NO. 948/DEL./2014 2 ALLOWABLE AS PER AMENDED PROVISIONS OF SECTION 36(1)(VIIA) OF THE INCOME TAX ACT, 1961. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN NOT ALLOWING THE PROVISION OF RS.3,06,240/ - MADE FOR GRAMIN GODOWN WHICH WAS A STATUTORY LIABILITY. 2. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WITH A DELAY OF 247 DAYS, FOR CONDONATION OF WHICH , THE ASSESSEE HAS FILED AN APPLICATION DATED 13.02.2014, SUBMITTING THAT THE DELAY HAS BEEN CAUSE D DUE TO LAPSE ON THE PART OF EA RLIER COUNSEL ENGAGED IN THIS CASE, INASMUCH AS, THE EARLIER COUNSEL AFTER RECEIPT OF THE IMPUGNED ORDER, FILED APPLICATION BEFORE THE LD. CIT(A) FOR RECALLING OF THE IMPUGNED ORDER INSTEAD OF FILING THE APPEAL BEFORE THE TRIBUNAL. IT WAS ALSO SUBMITTED TH AT NO ORDERS HAVE YET BEEN MADE ON THE SAID APPLICATION FOR RECALLING OF THE IMPUGNED ORDER BY THE LD. CIT(A) . SUBSEQUENTLY, WHEN THE ASSESSEE ENGAGED ITS NEW COUNSEL, THE APPEAL WAS PREPARED AND FILED WITHOUT LOSING ANY FURTHER TIME. IT IS, THEREFORE, SUB MITTED THAT FOR THE LAPSE ON THE PART OF EARLIER COUNSEL, THE ASSESSEE SHOULD NOT BE MADE TO SUFFER AND THE DELAY IN SUCH CIRCUMSTANCES DESERVES TO BE CONDONED. WE FIND THAT THE DELAY OCCURRED IN FILING THE APPEAL IS DUE TO REASONABLE CAUSE AS MENTIONED IN THE APPLICATION, WHICH STANDS UNCONTROVERTED BY THE LD. DR. ACCORDINGLY, THE DELAY OF 247 DAYS IS LIABLE TO BE CONDONED. ITA NO. 948/DEL./2014 3 3. PLACING RELIANCE ON THE GROUNDS OF APPEAL, THE LD. COUNSEL , AT THE OUTSET , CONTENDS THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DECID ING THE APPEAL IN LIMINE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD; THAT THE EARLIER COUNSEL FILED AN APPLICATION TO RECALL THE EXPART E ORDER BEFORE THE LD. CIT(A) WHICH STILL STANDS UN - DISPOSED OF AT THE STAGE OF LD. CIT(A). HE, THEREFORE, S UBMITTED THAT THE ASSESSEE DESERVES REASONABLE OPPORTUNITY OF HEARING ON MERITS OF APPEAL . 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTABLE THAT THE IMPUGNED ORDER HAS BEEN PASSED EXPARTE. THE NATURE OF THE IMPUGNED ORDER IS SUCH, AS IF THE APPEAL HAS BEEN DISMISSED IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE AND THE ISSUES INVOLVED IN APPEAL. UNDER THE PROVISIONS OF SECTION 250(6) OF THE IT ACT, THE LD. CIT(A) IS REQUIRED TO STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR SUCH DECISION, WHICH ARE LACKIN G IN THE IMPUGNED ORDER. THEREFORE, IN THE INTEREST OF JUSTICE, WE RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF LD. CIT(A) FOR DECIDING THE SAME AFRESH BY WAY OF SPEAKING ORDER, GIVING THE POINTS FOR DETERMINATION, DECISION THEREON AND THE ITA NO. 948/DEL./2014 4 REASONS FO R DECISION, AS CONTEMPLATED U/S. 250(6) OF THE ACT. NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD AND THE ASSESSEE IS DIRECTED TO FURNISH ALL THE MATERIALS AND DOCUMENTARY EVIDENCES , WHICH HE DEEMS FIT, IN SUPPORT OF IT S CLAIMS, BEFORE THE LD. CIT(A). ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.08.2017 . SD/ - SD/ - ( I.C. SUDHIR ) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22.08.2017 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI