Shri B abai Ram Suman, Jaunpur v. ITO, Faizabad

ITA 222/LKW/2011 | 2006-2007
Pronouncement Date: 13-07-2011 | Result: Allowed

Appeal Details

RSA Number 22223714 RSA 2011
Assessee PAN AUIPS0707L
Bench Lucknow
Appeal Number ITA 222/LKW/2011
Duration Of Justice 2 month(s) 14 day(s)
Appellant Shri B abai Ram Suman, Jaunpur
Respondent ITO, Faizabad
Appeal Type Income Tax Appeal
Pronouncement Date 13-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 13-07-2011
Assessment Year 2006-2007
Appeal Filed On 29-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B LUCKNOW BEFORE HONBLE SHRI H.L. KARWA AND HONBLE SHRI N.K. SAINI ITA NO.222/LKW/2011 ASSESSMENT YEAR:2006-07 SHRI. BABAI RAM SUMAN MUNGRA BADSHAHPUR JAUNPUR V. ITO FAIZABAD PAN:AUIPS0707L (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. B.B. SRIVASTAVA ADVOCATE RESPONDENT BY: SHRI. P. K. BAJAJ D.R. O R D E R PER H. L. KARWA: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-I LUCKNOW DATED 8.2.2011 RELATING TO ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE MAIN ORDER PASSED U/S 143(2) OF I.T. ACT BY THE ASSESSING AUTHORITY AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX APPEALS (1) IS ILLEGAL AND UNJUSTIFIED. 2. THAT THE ORDER IS NOT BASED ON MERITS AND FACTS OF THE CASE NOT CONSIDERING THE ACTUAL DUTIES OF DEVELOPMENT OFFICER OF LIC WHO HAS A VERY PECULIAR DUTY WHICH IS THE BASIS OF HIS PERFORMANCE. 3. THAT THE LIC DEPARTMENT ISSUED A CERTIFICATE THAT RS.337338.00 WAS PAID TO THE ASSESSEE TO MEET EXPENSES OF CONVEYANCE FOR THE YEAR 2006-07 AND ALSO THAT RS.337338.00 HAS BEEN INCURRED WHOLLY NECESSARILY & EXCLUSIVELY IN THE FOLLOWING CASES IT IS HELD THAT; IN A VIEW OF THE PROVISION OF SEC. 10(14) READ WITH RULE 2BB IT IS CLEAR THAT THE ASSESSEE HAS RIGHTLY CLAIMED THE CONVEYANCE ALLOWANCES & ADDITIONAL CONVEYANCE ALLOWANCES. IN VIEW OF :-2-: THE CIRCULAR ISSUED BY CBDT AND CIRCULAR ISSUED BY LIC OF INDIA BILLS VOUCHERS OR LOG BOOK IS NOT REQUIRED TO BE MAINTAINED BY A DEVELOPMENT OFFICER IF HE CLAIMS THE CONVEYANCE ALLOWANCE & ADDITIONAL CONVEYANCE UP TO THE AMOUNT OF CERTIFIED BY THE EMPLOYER LIC OF INDIA BEING MINIMUM AMOUNT OF EXPENDITURE . 4. THAT THE LEARNED ASSESSING AUTHORITY AS WELL AS THE LEARNED APPELLATE AUTHORITY HAS IGNORED THE FACT ARBITRARILY & UNLAWFULLY WHERE AS THE LIC OF INDIA HAS ALLOWED TO THE EXCEPTION U/S 10(14) IN FORM 16 & AS WELL AS BY A SPECIFIC CERTIFICATE WHICH WAS SUBMITTED BEFORE THE APPELLATE AUTHORITY. 5. THAT THE HON'BLE HIGH COURT HAS ALSO GIVEN DECISIONS WHICH ARE IN FAVOUR OF THE ASSESSEE IN WHICH IT IS CLEARLY HELD THAT CONVEYANCE ALLOWANCE GIVEN TO THE DEVELOPMENT OFFICERS OF LIC WHICH ARE USED IN PERFORMANCE OF HIS DUTIES ARE ACTUALLY EXEMPT FROM TAX. COMMISSIONER OF INCOME TAX VS L. SHASTRI LAL (2010) 32 ITC L332 DECISION BY KERELA HIGH COURT & ALLAHABAD HIGH COURT IN WRIT PETITION NO. 2197 NATIONAL FEDERATION OF INSURANCE VS UNION OF INDIA AND IN MORE CASES SAME TYPE OF DECISIONS HELD. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DEVELOPMENT OFFICER OF LIC OF INDIA AND FILING HIS RETURN OF INCOME REGULARLY. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED DEDUCTION FOR CONVEYANCE ALLOWANCE BUT THE ASSESSING AUTHORITY DID NOT ALLOW DEDUCTION ON THE PRETEXT OF THE CIRCULAR ISSUED BY THE C.B.D.T. AND THE CIRCULAR ISSUED BY THE LIC OF INDIA. 4. ON APPEAL THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND HENCE THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. :-3-: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. SHRI. B.B. SRIVASTAVA ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE ASKED THE DEPARTMENT TO ISSUE A CERTIFICATE SHOWING CONVEYANCE ALLOWANCE GIVEN TO HIM AS USED IN PERFORMANCE OF HIS DUTIES THE SAME WAS SUBMITTED BEFORE THE LD. CIT(A) BUT IT WAS NOT CONSIDERED AND THE CASE WAS DECIDED BY PASSING AN EX-PARTE ORDER WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE THEREFORE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER BE REMANDED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON THE OTHER HAND SHRI. P.K. BAJAJ LD. D.R. VEHEMENTLY OPPOSED THE ABOVE CONTENTION OF SHRI. B.B. SRIVASTAVA ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. HE FURTHER SUBMITTED THAT THE LD. CIT(A) HAS AFFORDED SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREFORE THE MATTER SHOULD NOT BE REMANDED TO THE LD. CIT(A). 5.1. AFTER PERUSING THE IMPUGNED ORDER WE FIND THAT THE LD. CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN OUR OPINION THE LD. CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY AIR (1979) ORISSA 69 THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE WE THINK IT PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF ORDER. AT THIS JUNCTURE :-4-: WE ALSO DIRECT THE ASSESSEE TO ATTEND THE HEARING BEFORE THE LD. CIT(A) AND CO- OPERATE. 5.2. IN VIEW OF THE ABOVE NO FINDINGS ARE BEING GIVEN ON MERITS. 6. IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13.7.2011. SD/- SD/- [ N. K. SAINI] [H. L. KARWA] ACCOUNTANT MEMBER VICE PRESIDENT DATED:13.7.2011 JJ:1307 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR