Foundation For Development Research and Action, v. Dy. Commissioner Of Income Tax, Bareilly

ITA 930/LKW/2014 | 2009-2010
Pronouncement Date: 28-04-2015 | Result: Allowed

Appeal Details

RSA Number 93023714 RSA 2014
Assessee PAN AAATF1915Q
Bench Lucknow
Appeal Number ITA 930/LKW/2014
Duration Of Justice 3 month(s) 30 day(s)
Appellant Foundation For Development Research and Action,
Respondent Dy. Commissioner Of Income Tax, Bareilly
Appeal Type Income Tax Appeal
Pronouncement Date 28-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 28-04-2015
Date Of Final Hearing 20-04-2015
Next Hearing Date 20-04-2015
Assessment Year 2009-2010
Appeal Filed On 29-12-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO.930/LKW/2014 ASSESSMENT YEAR:2009-10 FOUNDATION FOR DEVELOPMENT RESEARCH AND ACTION 189 RAJPUR ROAD DEHRADUN V. DCIT CIRCLE I BAREILLY TAN/PAN:AAATF1915Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. R. N. SHUKLA ADVOCATE RESPONDENT BY: SMT. RINKI MAHAVAR D.R. DATE OF HEARING: 20 04 2015 DATE OF PRONOUNCEMENT: 28 04 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. BECAUSE THE ORDER SUFFERS FROM MATERIAL IRREGULARITY OF LAW AS WELL AS OF FACTS. 2. BECAUSE THE APPELLANT HAD FILED THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEALS BAREILLY HIMSELF AND ENCLOSED THE DEMAND DRAFT OF RS.1000/- IN THE NAME OF 'GOVERNMENT DUES INCOME TAX BAREILLY' AGAINST THE APPEAL FEE IN PLACE OF PRESCRIBED FEE THROUGH INCOME TAX CHALAN AND THE COMMISSIONER OF INCOME TAX APPEALS BAREILLY NEITHER ISSUED ANY NOTICE FOR REMOVAL OF SUCH DEFECT NOR RETURNED THE SAID DEMAND DRAFT HENCE THE FORM NO. 35 CANNOT BE DECLARED INVALID FOR THE TECHNICAL BREACH. :- 2 -: 3. BECAUSE THE APPELLANT COULD NOT PRESENT ON 22.4.2014 DUE TO ILLNESS AS HE WAS SUFFERING FROM UNBEARABLE CERVICAL SPONDYLITIS PAIN AND THE APPELLANT HAD BEEN ADVISED COMPLETE BED REST BY THE PHYSICIAN AND UNDER THE ABOVE MENTIONED ILLNESS APPELLANT COULD NOT MAKE ANY ALTERNATIVE ARRANGEMENTS BECAUSE THE APPELLANT WAS AT DELHI AT HIS RESIDENCE HENCE COULD NOT ENTRUST THE RESPONSIBILITY OF TAX MATTER TO ANYONE ELSE. 4. BECAUSE THERE WAS SUFFICIENT REASONABLE CAUSE BY WHICH THE APPELLANT WAS PREVENTED TO APPEAR. 5. BECAUSE THE FIRST APPELLATE AUTHORITY HAD PASSED THE EX-PARTE ORDER DATED 23.04.2014 WITHOUT GIVING PROPER OPPORTUNITY DESPITE THE FACT THAT THE APPELLANT HAD SENT THE APPLICATION FOR ADJOURNMENT THE FACT HAS BEEN EVEN MENTIONED IN THE IMPUGNED ORDER OF COMMISSIONER OF INCOME TAX APPEALS. 6. BECAUSE THE COURT BELOW ERRED IN PASSING EX-PARTE ORDER AND CONFIRMING THE ASSESSMENT ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY. 7. BECAUSE THERE WAS SUFFICIENT REASONABLE CAUSE DUE TO WHICH THE APPELLANT HAD BEEN PREVENTED TO ATTEND THE APPEAL. 8. BECAUSE WHAT HAD HAPPENED UNDER THE CIRCUMSTANCES WAS BEYOND THE CONTROL OF THE APPELLANT. 9. BECAUSE THE APPELLANT ALTHOUGH SEEK ADJOURNMENT BUT COULD NOT ATTEND THE ASSESSMENT PROCEEDINGS DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES IN ATTENDING THE URGENT WORK OF THE APPELLANT SOCIETY AND THE ASSESSING AUTHORITY PASSED THE EX- PARTE ORDER DATED 16.12.2011 U/S 144 OF INCOME TAX ACT 1961. 10. BECAUSE IT IS SETTLED LAW AS HELD BY HON'BLE APEX COURT THAT ' THE EXPRESSIONS 'NATURAL JUSTICE' AND 'LEGAL JUSTICE' DO NOT PRESENT A WATER-TIGHT CLASSIFICATION. IT IS THE SUBSTANCE OF JUSTICE WHICH IS TO BE SECURED BY BOTH AND WHENEVER LEGAL JUSTICE FAILS TO ACHIEVE THIS SOLEMN PURPOSE NATURAL JUSTICE IS CALLED IN AID OF LEGAL JUSTICE. NATURAL JUSTICE RELIEVES LEGAL JUSTICE :- 3 -: FROM UNNECESSARY TECHNICALITY GRAMMATICAL PEDANTRY OR LOGICAL PREVARICATION. IT SUPPLIES THE OMISSIONS OF A FORMULATED LAW. AS LORD BUCKMASTER SAID NO FORM OR PROCEDURE SHOULD EVER BE PERMITTED TO EXCLUDE THE PRESENTATION OF A LITIGANTS DEFENSE. WITHOUT PREJUDICE TO ABOVE MENTIONED GROUNDS 11. BECAUSE THE APPELLANT IS A CHARITABLE SOCIETY ESTABLISHED FOR CHARITABLE PURPOSE WITHIN THE MEANING OF SECTION 12A OF THE INCOME TAX ACT 1961 AND REGISTERED UNDER SECTION 12A(A) OF INCOME TAX ACT 1961 12. BECAUSE THE COURT BELOW ILLEGALLY TREATED THE AMOUNT OF RS.53 66 123/- AS ANONYMOUS DONATIONS UNDER SECTION 115BBC OF INCOME TAX ACT 1961 AND ALSO ILLEGALLY DISALLOWED THE AMOUNT OF RS.45 09 214/- DEBITED AGAINST THE UTILIZATION OF GRANT FOR THE CHARITABLE PURPOSE AND ASSESSMENT HAD BEEN COMPLETED UNDER THE STATUS OF ASSOCIATION OF PERSON. 13. BECAUSE THE DEDUCTION CLAIMED BY THE APPELLANT U/S 11 (1 )(A) OF INCOME TAX ACT 1961 RS.5 87 921/- HAD ALSO BEEN DISALLOWED BEING STATUS OF THE APPELLANT HAS BEEN ILLEGALLY SET ASIDE AND COMPLETED UNDER THE STATUS OF ASSOCIATION OF PERSON. 14. BECAUSE THE GRANTS OF RS.10 42 258/- ON WHICH TDS OF RS.21 473/- HAS BEEN DEDUCTED HAD ALSO BEEN ILLEGALLY ASSESSED BY APPLYING THE PROVISIONS OF SECTION 44AD OF INCOME TAX ACT 1961. 2. THE REGISTRY HAS POINTED OUT THE DELAY OF 107 DAYS IN FILING OF THE APPEAL FOR WHICH APPLICATION FOR CONDONATION OF DELAY IS FILED EXPLAINING THE REASONS FOR THE DELAY. HAVING CAREFULLY EXAMINED THE APPLICATION FOR CONDONATIN OF DELAY WE FIND MERIT THEREIN AND WE ACCORDINGLY CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT :- 4 -: THE ASSESSEE INSTEAD OF DEPOSITING THE FEE BEFORE THE LD. CIT(A) HAS ANNEXED A DEMAND DRAFT OF RS.1 000/- IN THE NAME OF GOVERNMENT DUES INCOME TAX BAREILLY. ON FILING OF THE APPEAL BEFORE THE LD. CIT(A) THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ISSUING ANY DEFECT NOTICE IN FILING OF THE APPEAL. THEREFORE THE ORDER OF THE LD. CIT(A) MAY KINDLY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIM FOR ADJUDICATION OF THE APPEAL AFRESH. 4. THE LD. D.R. ON THE OTHER HAND HAS SUBMITTED THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSESSING OFFICER DESPITE ISSUANCE OF VARIOUS NOTICES TO IT. SIMILAR IS THE POSITION BEFORE THE LD. CIT(A) AS THE LD. CIT(A) HAS ISSUED VARIOUS NOTICES TO THE ASSESSEE BUT THE ASSESSEE DID NOT APPEAR BEFORE HIM. THE ASSESSEE HAS NEITHER PAID FEE BEFORE THE LD. CIT(A) NOR PUT HIS APPEARANCE AND THE LD. CIT(A) WAS CONSTRAINED TO DISPOSE OF THE APPEAL IN THE ABSENCE OF THE ASSESSEE. THE LD. D.R. HAS FURTHER CONTENDED THAT IN ANY CASE THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE BUT SUBJECT TO PAYMENT OF COST. 5. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS WE FIND THAT THE ASSESSEE HAS NEITHER APPEARED BEFORE THE ASSESSING OFFICER NOR THE LD. CIT(A) DESPITE VARIOUS OPPORTUNITIES AFFORDED BY THE LOWER AUTHORITIES. EVEN BEFORE THE LD. CIT(A) ASSESSEE DID NOT PAY THE FEE THROUGH CHALLAN RATHER SENT A DEMAND DRAFT ALONG WITH THE APPEAL. IT IS ALSO EVIDENT FROM THE ORDER OF THE LD. CIT(A) THAT THE LD. CIT(A) HAS ISSUED VARIOUS NOTICES TO THE ASSESSEE BUT THE ASSESSEE DID NOT APPEAR. KEEPING IN VIEW THE TOTALITY OF THE FACTS OF THE CASE WE ARE OF THE VIEW THAT IT IS A CASE OF GROSS NEGLIGENCE OF THE ASSESSEE. WHENEVER NOTICES ARE ISSUED BY THE AUTHORITIES CONCERNED THE ASSESSEE SHOULD PUT HIS APPEARANCE AND PROSECUTE THE CASE. BUT IN THIS CASE WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE BUT SUBJECT TO PAYMENT OF COST IN ORDER TO DISCOURAGE SUCH :- 5 -: TYPE OF ASSESSEES SO THAT PROPER COMPLIANCE OF THE NOTICES OF THE LOWER AUTHORITIES CAN BE MADE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) SUBJECT TO PAYMENT OF COST OF RS.5 000/- TO BE DEPOSITED IN THE ACCOUNT IN WHICH TRIBUNAL FEE IS DEPOSITED AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORTS OF CO-OPERATION TO THE ASSESSING OFFICER IN ORDER TO COMPLETE THE SET ASIDE ASSESSMENT. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 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: 28 TH APRIL 2015 JJ:2004 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR