Smt. Vijaya Kirti , Lucknow V. Income Tax Officer- 1(5), Lucknow

SA 19/LKW/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0236 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Application of stay; Set aside
• Section: 250

Judgement Text

S.A.NO.19/LKW/2019 I.T.A. NO.364/LKW/2018 ASSESSMENT YEAR:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER STAY APPLICATION NO.19/LKW/2019 (IN ITA NO.364/LKW/2018) ASSESSMENT YEAR:2013-14 & I.T.A. NO.364/LKW/2018 ASSESSMENT YEAR:2013-14 MRS. VIJAYA KIRTI, 631/102, AJAI NAGAR, CHURCH ROAD, KAMTA, LUCKNOW. PAN:AJLPK 1384 J VS. INCOME TAX OFFICER-1(5), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS STAY APPLICATION HAS BEEN FILED BY THE ASSESS EE FOR STAY OF OUTSTANDING DEMAND AMOUNTING TO RS.41.41 LACS. 2. AFTER HEARING BOTH THE PARTIES AND CONSIDERING T HE MATERIALS AVAILABLE ON RECORD, WE DECIDED FIRST TO DISPOSE OF THE APPEA L OF THE ASSESSEE WHICH HAS BEEN FILED AGAINST THE ORDER OF LEARNED CIT(A)- 1, LUCKNOW DATED 29/09/2017 PERTAINING TO ASSESSMENT YEAR 2013-14. APPELLANT BY SHRI SANDEEP KUMAR, F.C.A. RESPONDENT BY S HRI C. K. SINGH, D.R. DATE OF HEARING 12/03/2019 DATE OF PRONOUNCEMENT 15/03/2019 S.A.NO.19/LKW/2019 I.T.A. NO.364/LKW/2018 ASSESSMENT YEAR:2013-14 2 3. WE NOTED THAT LEARNED CIT(A) HAS PASSED EX-PARTE ORDER AS ACCORDING TO HIM, NOBODY HAS APPEARED ON THE DATE WHEN THE AP PEAL WAS FIXED FOR HEARING BEFORE HIM. THE LEARNED CIT(A) HAS NOT CON DONED THE DELAY ALSO IN FILING THE APPEAL BEFORE HIM INSPITE OF THE FACT TH AT THE ASSESSEE HAD MOVED CONDONATION APPLICATION STATING THEREIN THAT THE AS SESSEE IS AN OLD LADY SUFFERING FROM VARIOUS AILMENTS AND WHEN ILL SHE ST AYS WITH HER SON WHO RESIDES IN SONBHADRA DUE TO WHICH THE DELAY HAS HAP PENED. THE ASSESSEE HAD ALSO SUBMITTED IN THE CONDONATION APPLICATION B EFORE LEARNED CIT(A) THAT THE DELAY IN FILING THE APPEAL WAS NOT INTENTI ONAL BUT ON ACCOUNT OF CIRCUMSTANCES BEYOND CONTROL OF THE ASSESSEE. HOWEV ER, LEARNED CIT(A) REJECTED THE CONDONATION APPLICATION OF THE ASSESSE E ON THE GROUND THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN SUPPORT OF THE CONTENTS MENTIONED IN THE CONDONATION APPLICATION. THE CONDONATION APP LICATION WAS NOT SUPPORTED BY MEDICAL CERTIFICATE ALSO. FROM THE ORD ER OF CIT(A), IT IS APPARENT THAT THE CIT(A) HAD ISSUED VARIOUS NOTICES TO THE ASSESSEE HOWEVER, NEITHER ANYBODY APPEARED ON BEHALF OF ASSE SSEE NOR FILED ADJOURNMENT APPLICATION AND FINALLY LEARNED CIT(A) PASSED THE EX-PARTE ORDER. HOWEVER, WE FEEL THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. THE PROVISION OF SECTION 250 WHICH DEALS WITH THE PROCEDURE IN APPEAL BEFORE THE CIT(A), ALLOWS A RIGHT TO AN ASSE SSEE TO BE HEARD AT THE TIME OF HEARING OF APPEAL. EVEN THE NATURAL JUSTIC E DEMANDS THAT NO APPEAL SHOULD BE DISPOSED OF WITHOUT BEING HEARD THE PARTY OR WITHOUT GIVING HIM THE PROPER AND SUFFICIENT OPPORTUNITY. WE ARE OF T HE VIEW FROM THE FACTS OF THE CASE THAT THE ASSESSEE HAS NOT BEEN GIVEN PROPE R AND SUFFICIENT OPPORTUNITY BEFORE DISPOSING OF THE APPEAL BY THE C IT(A). WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE P ARTIES, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE APPEAL TO THE FILE OF THE CI T(A) WITH THE DIRECTION THAT THE CIT(A) SHALL CONSIDER THE CONDONATION APPL ICATION OF THE ASSESSEE S.A.NO.19/LKW/2019 I.T.A. NO.364/LKW/2018 ASSESSMENT YEAR:2013-14 3 SYMPATHETICALLY AND CONDONE THE DELAY AND REFIX THE SAID APPEAL AND DECIDE THE APPEAL AFRESH AFTER GIVING PROPER AND SUFFICIEN T OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECT ED TO BE PRESENT ON THE DATE OF HEARING FIXED BY LEARNED CIT(A) AND NOT SEE K UNDUE ADJOURNMENT AND CO-OPERATE WITH LEARNED CIT(A) IN DISPOSING OF THE APPEAL. 4. SINCE WE HAVE SET ASIDE THE ORDER OF LEARNED CIT (A) TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH, THE STAY APP LICATION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES WHEREAS THE STAY APPLICATION IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 15/03/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:15/03/2019 *SINGH 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 ASSISTANT REGISTRAR