Sri Lal Anand Prakash, SiddharthNagar V. Income Tax Officer, Basti

MA 102/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3317 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Section: 234B

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 M.A. NO.102/LKW/2014 [ARISING OUT OF ITA NO.174/LKW/2009] ASSESSMENT YEAR: 2003-04 SHRI. LAL ANAND PRAKASH PROP. M/S BANDU OIL CO. TATARI BAZAR, SIDHARTH NAGAR V. INCOME TAX OFFICER BASTI PAN:AGNPP4215H (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. HARISH GIDWANI, D.R. DATE OF HEARING: 24 04 2015 DATE OF PRONOUNCEMENT: 05 06 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 18.11.2011 IN I.T.A. NO. 174/LKW/2009 WITH THE SUBMISSION THAT THE IMPUGNED APPEAL WAS DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 18.11.2011. WHILE DISPOSING OF THE APPEAL, GROUND NO.5 RELATING TO INTEREST CHARGED UNDER SECTION 234B AND 234C OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') ESCAPED THE ATTENTION OF THE TRIBUNAL AND REMAINED TO BE ADJUDICATED. THE ASSESSEE ACCORDINGLY MOVED A MISCELLANEOUS APPLICATION VIDE M.A. NO.06/LKW/2012 POINTING OUT THE ERROR IN THE ORDER OF THE TRIBUNAL AND THE TRIBUNAL ACCORDINGLY DISPOSED OF THE SAID MISCELLANEOUS APPLICATION VIDE ITS ORDER DATED 15.6.2012 AND DIRECTED THE REGISTRY TO LIST THIS APPEAL FOR HEARING ON 22.6.2012 FOR ADJUDICATING GROUND NO.5 RELATING TO INTEREST CHARGED UNDER SECTION 234B AND 234C OF THE ACT. :- 2 -: 2. CONSEQUENTLY THE APPEAL IN I.T.A. NO. 174/LKW/2009 WAS LISTED FOR HEARING ON 27.5.2014. WHEN THE MATTER WAS LISTED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE TRIBUNAL INSTEAD OF DISPOSING OF GROUND NO.5 HAS DISMISSED THE APPEAL EX-PARTE VIDE ITS ORDER DATED 28.5.2014. 3. AGAINST THE EX-PARTE ORDER OF THE TRIBUNAL, THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION VIDE M.A. NO.68/LKW/2014 FOR RECALLING OF THE EX- PARTE ORDER OF THE TRIBUNAL, BUT WHEN THE MISCELLANEOUS APPLICATION WAS LISTED FOR HEARING ON 19.9.2014, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE MISCELLANEOUS APPLICATION WAS ALSO DISMISSED. 4. NOW THE ASSESSEE HAS MOVED THE PRESENT MISCELLANEOUS APPLICATION WITH A REQUEST TO MAKE NECESSARY RECTIFICATION IN THE EX-PARTE ORDER OF THE TRIBUNAL DATED 28.5.2014. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT SINCE THE APPEAL WAS REFIXED FOR ADJUDICATION OF GROUND NO.5 RELATING TO INTEREST CHARGED UNDER SECTION 234B AND 234C OF THE ACT, THE ENTIRE APPEAL CANNOT BE DISMISSED ON ACCOUNT OF NON- APPEARANCE ON BEHALF OF THE ASSESSEE. THEREFORE, THE ORDER OF THE TRIBUNAL DATED 28.5.2014 MAY BE RECALLED AND THE APPEAL MAY BE LISTED FOR HEARING ON A LIMITED ISSUE RELATING TO CHARGEABILITY OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT RAISED VIDE GROUND NO.5. 5. THE LD. D.R. DID NOT DISPUTE THE FACTUAL ASPECT. 6. HAVING CAREFULLY EXAMINED THIS MISCELLANEOUS APPLICATION AND THE ORDERS OF THE TRIBUNAL, WE FIND THAT GROUND NO.5 RELATING TO CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT WAS LEFT TO BE ADJUDICATED AND WHEN THE MATTER WAS LISTED FOR HEARING, THE TRIBUNAL HAS INADVERTENTLY DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF NON-APPEARANCE ON BEHALF OF THE ASSESSEE. WE, THEREFORE, RECALL OUR ORDER DATED 28.5.2014 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING ON A LIMITED ISSUE :- 3 -: RELATING TO INTEREST CHARGED UNDER SECTION 234B AND 234C OF THE ACT RAISED VIDE GROUND NO.5, WHICH IS REPRODUCED AS UNDER:- 5. THAT THE APPELLANT IS NOT LIABLE TO PAY INTEREST UNDER SECTION 234B AND 234C. THIS GROUND WAS TAKEN BEFORE THE LD. CIT(A), BUT THE SAME HAS NOT BEEN ADJUDICATED UPON BY HIM. 7. LET THE MATTER BE LISTED FOR HEARING ON 16.6.2015. 8. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. 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:5 TH JUNE, 2015 JJ:0505 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR