Income Tax Appellate Tribunal - Lucknow
M/S Kanpur Electricity Supply Co. Ltd., ... vs Deputy Commissioner Of Income Tax-Vi, ... on 25 January, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH "B", LUCKNOW
BEFORE SHRI A.D JAIN, VICE PRESIDENT AND
SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
ITA No.315/LKW/2018
A.Y. 2011-12
Principal Officer, Vs. ACIT-VI
Kanpur Electricity Supply Company Kanpur
Limited KESCO House,
14/71, Civil Line, Kanpur
PAN AACCK3753D
ITA No.316/LKW/2018
A.Y. 2012-13
Principal Officer, Vs. DCIT-VI
Kanpur Electricity Supply Company Kanpur
Limited KESCO House,
14/71, Civil Line, Kanpur
PAN KNPK00003D
(Appellant) (Respondent)
Appellant by Shri O.P. Shukla, Advocate
Respondent by Shri C.K. Singh, DR
Date of hearing 18/01/2019
Date of pronouncement 25/01/2019
ORDER
PER: A.D. JAIN, VICE PRESIDENT:
Early hearing Applications No. 06 & 07/Lkw/2018
1. The assessee has moved applications dated 18.04.2018 and 17.09.2018 for early hearing of the appeals. We find that the ld. CIT(A) has passed ex-parte orders. Therefore, we deem it appropriate to take up these appeals on merit at this juncture. The Department would have no objection.2
ITA No. 315&316/Lkw/2018
2. These appeals are filed by the assessee for Assessment Years 2011-12 and 2012-13, involving common issues. As such, they are being disposed of by this composite order. Details, for convenience, are being taken from ITA No.315/Lkw/2018 in the case of Principal Officer, Kanpur Electricity Supply Company Ltd. The following grounds have been raised in ITA No.315/Lkw/2018:
"1. Because, the Ld. Commissioner of Income Tax (Appeals) was not to pass ex-party order of appeal and dismissed the appeals only on technical ground, Though the counsel of the appellant was appeared before the Commissioner of Income Tax (Appeals ) for hearing in other case on 23.03.2018, which is erroneous bad in law and on facts.
2. Because the Id. Commissioner of Income Tax (Appeals) has not issued a notice for hearing of appeal on 23.03.2018 and last notice was served on the appellant on 08.02.2017 though, as per the notification of CBDT after hearing of appeals the ClT(Appeals) is bound to pass order within 15 days from the date of hearing of appeals but in the said appeals order has been passed on 23.03.2018 after expiry of one year.
3. Because , the Ld. Commissioner of Income Tax (Appeals) was not justify to pass any ex-party order if any notice served on the counsel on which the appellant are not aware from such notice.
4. Because the order passed by the Commissioner of Income Tax (Appeals) without consider the facts of the case on merit has dismissed the appeals only on the technical ground therefore the order passed by the Commissioner of Income tax (Appeals) deserved to be set-aside.
5.
6. Because the if any lack on the part of the counsel regarding appearance of the case before the Commissioner (Appeals), the appellants placed reliance on the judgment of Hon'ble Supreme court in case of Rafiqu Vs MunshiLal 1981 (AIR) SC 1400. The Hon'ble Supreme court held that :-
A) It is not proper that an innocent litigant, after doing everything in his power to effectively participate in his 3 ITA No. 315&316/Lkw/2018 proceedings by entrusting his case to the Advocate should be made to suffer for the inaction, deliberate omission or misdemeanor of his agent. For whatever reason the Advocate might have absented himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate. [511B] The respondent's costs should be recovered from the Advocate who absented himself from Court. [511D]. The Court directed the appeal to be restored to its original position in the High Court and heard.
B) The appellant also placed reliance on the judgment of Allahabad High court in case of Subhash Malik Vs CIT and other 328 ITR. The Hon'ble court placed reliance on the judgment of Hon'ble Supreme Court in the case of West Bengal Vs Administrator Hawara Municipalities (1972) SC 749. The Hon'ble court held that if a party had acted in a particular on wrong advice given by his local adviser he cannot be held guilty of negligence. So as to disentitle the party to plead sufficient cause u/s 5 of Limitation Act, 1963. It also held that the word "sufficient cause should received a liberal construction so as to advance substantial and no negligence or in action for want of bonafied in imputabie to a party". C) The Hon'ble ITAT Agra Bench Also realized on the aforesaid judgment and held the same view in case of Jhansi development Authority Vs assessee ITA NO. 22/AGR/2010.
D) The appellant also placed reliance on the judgment of Income Tax Appellate Tribunal Chennai vide ITA NO. 540/ MDS/2015 E) The appellant also placed reliance on the judgment of Hon'ble ITAT Agra Bench in case of Sevak ICE and Cold Storage Pvt Ltd. VS ASSESSEE ITA no. 457/2010 Whether the Hon'ble Bench Placed reliance on the judgment of Mahabri Prasad Vs CIT 172 ITR (331) (MP), Ram Lal & Sons Vs ITO 99 TTA (ASR) 63. Kripa Shankar Vs CWT 181 ITR 183 (Alld), GangaSahai Ram Swroop Vs ITAT 271 ITR 512 (Alld).4
ITA No. 315&316/Lkw/2018 F) The assessee case is covered by the Judgment of Hon'ble Madhya Pradesh High court in case of Mahabir Prasad Jain 172 ITR 331 whether the court held that "
"The failure for the counsel for the assessee to appear before CIT(A) the assessee cannot be penalized. And appeal cannot be dismissed for default. Accordingly to the learned counsel the assessee cannot be made to suffer for the negligence of his counsel."
7. Because, the appellant craves for a right to raise any additional ground during the course of hearing of the case.
8. Because the order passed by the Ld. Commissioner of Income Tax Appeal to confirm the action of the Assessing officer is erroneous, bad in law and on facts and is liable to be deleted."
3. By virtue of the impugned order, the ld. CIT(A) has dismissed the assessee's appeal for non prosecution, observing that notices dated 12.01.2016 and 23.01.2017 were served on the address submitted by the assessee in its memo of appeal; that however, no written submission or paper book had been filed in support of any of the grounds of appeal taken; and that none had attended on behalf of the assessee. Such service of notices has, however, been disputed by the assessee.
4. Heard. We find that the CIT(A) has dismissed the appeal without providing proper opportunity to the assessee. Moreover, he has not decided the appeal after discussing in detail, his reasons for agreeing with the assessment order. As such, another opportunity of hearing requires to be 5 ITA No. 315&316/Lkw/2018 given to the assessee to represent his case fully before the ld. CIT(A). Even otherwise, it is trite ['S. Velu Palandar Vs. DCIT' 83 ITR 683 (Mad.)] and incumbent on the ld CIT(A) to decide an appeal on merit even in the absence of any representation before them.
5. In view of the above, the matter is remitted to the file of the ld. CIT(A) to be decided afresh on merit, in accordance with law, on affording due and adequate opportunity of hearing to the assessee. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered accordingly.
6. Facts being similar in the other appeal, i.e., ITA No.316/Lkw/2018 as well, this appeal is also restored to the file of the ld. CIT(A), with the same observations as given in ITA No.315/Lkw/2018.
7. In the result, both the early hearing Applications No. 06 & 07/Lkw/2018 are allowed. For statistical purposes, both the appeals are treated as allowed.
Order pronounced in the open court on 25/01/2019.
Sd/- Sd/- (T.S. Kapoor) (A.D. Jain) Accountant Member Vice President Aks - Dtd. 25/01/2019 6 ITA No. 315&316/Lkw/2018 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 7 ITA No. 315&316/Lkw/2018 1. DATE OF DICTATION 18.01.2019
2. DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.01.2019
2.A DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER.....................
3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR.P.S.....................
4. DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT........................
5. DATE ON WHICH THE ORDER COMES BACK TO PS/SR.P.S...............
6. DATE OF UPLOADING THE ORDER ON WEBSITE......................................
7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO.....................
8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK.........................
9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT................
10. DATE ON WHICH THE FILE GOES TO THE O.S. ...........................
11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER....................................
12. THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER....................................
13. DATE OF DESPATCH OF ORDER........................