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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
Before: SHRI H.S. SIDHU
The Assessee has filed the Appeal against the Order dated 08.11.2017 of the Ld. CIT(A)-1, Gurgaon pertaining to assessment year 2010-11 on the following grounds:-
1. That, the CIT(A) has erred in not condoning the delay in filling of appeal and treating the same as defective, without appreciating that the assessee is covered with reasonable cause of delay in filling of appeal.
2. That the notice issued U/s 148 and assessment order passed U/s 147/143(3) and the additions/ disallowances made are illegal, bad in law and without jurisdiction.
3. That the reason to believe was never framed by the AO and notice issued is without any tangible material, which is illegal, bad in law and without jurisdiction and without application of mind by the assessing officer.
That no proper statutory approval has been taken by the Assessing officer U/s 151 of the I.T. Act, 1961, as required. If any approval is taken then the approval is in very mechanical manner without application of mind by the statutory authority hence the proceedings initiated U/s 147/148 is illegal, bad in law and without jurisdiction.
5. That, the assessing officer/CIT(A) erred in completing the assessment proceedings U/s 147r.w.s.l48, without supplying the reasons recorded to the assessee appellant, which is illegal, bad in law and without jurisdiction.
6. That the additions/ disallowances made are illegal, unjust, highly excessive and are not based on any material on record by the Assessing Officer. The total income of the Appellant has been wrongly and illegally computed by the Assessing Officer at Rs. 10,87,230/- as against income declared at Rs.4,37,230/-.
The assessing officer erred in making the addition of Rs. 6,50,000.00 on account of the arrear of Gratuity received during the year on the retirement of the assessee appellant U/s 10(10)(iii) of the Act due to the revision in Civil Service Rules of State of Haryana. The CIT(A) has erred in law and on facts in upholding the action of the AO.
The assessing officer erred in making the addition of Rs. 1,85,090.00 on account of the arrear of leave encashment U/s 10(10AA)(iii) of the Act received during the year on the retirement of the assessee appellant due to the amendment in Civil Service Rules of State of Haryana. The CIT(A) has erred in law and on facts in upholding the action of the AO.
That, the CIT(A)/ AO failed to appreciate that the assessee is the employee of the Chaudhary Charan Singh Haryana Agriculture University, which is a State Governed University and instituted from Punjab Agri. Univ. Ludhiana in Feb. 1970 by Parliament Act.
That the CIT(A)/ AO erred in holding that the assessee appellant is not the state employee , which is totally wrong and perverse, by ignoring the fact that the Chaudhary Charan Singh Haryana Agriculture University is a State controlled and a State Govt Statutory Body and the gratuity received by the employees of the University in exempt as per provision of section 10(10)(i) of the Income Tax Act, 1961.
That the CIT(A) failed to appreciate that the additions made by the AO in the Assessment order are made merely on the basis of surmises and conjectures and contrary to facts and evidence on record and cannot be justified.
That interest U/s 234B of the Income Tax Act, 1961 has been wrongly and illegally charged and has been wrongly worked out.
The Appellant craves leave to add, amend, alter and/or delete any of the above grounds of appeal at or before the time of hearing.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
In this case Sh. Ankit Gupta, Ld. Counsel for the Assessee/Advocate alongwith Assessee appeared before the Bench.
Ld. Counsel for the Assessee and assessee stated that Ld. First Appellate Authority has dismissed the Appeal of the Assessee being time barred by 2 years and 10 months. They further stated that the Ld. CIT(A) has not given sufficient opportunity in producing the necessary evidences for substantiating the delay in dispute. Ld. Counsel for the assessee has further stated that the issue in dispute is squarely covered in favour of the assessee by the decision of the ITAT, SMC-I, Delhi Bench decision dated 16.6.2016 passed in (AY 2010-11) in the case of Ram Kanwar Rana vs. ITO. Ld. Counsel for the assessee as well as the assessee is ready to make the payment of Rs. 20,000/- in the Treasury of ITAT on account of cost/compensation, if this Bench condoned the delay in dispute and set aside the matter to the file of the Ld. CIT(A) to decide the same afresh, as per the decision stated above. To support the aforesaid contention, Assessee has filed his Affidavit dated 27.10.2018. He also undertakes that he will not take any unnecessary adjournment and will appear before the Ld. CIT(A) on whichever date fixed by the Bench.
4. On the other hand, Ld. DR has not raised any serious objection to the request for the Assessee’s counsel.
I have heard both the parties and perused the records.
After perusing the relevant records available with me alongwith the orders of the revenue authorities and the Tribunal’s order as referred by the assessee’s counsel and the affidavit of the assessee, I am of the considered view that Ld. CIT(A) has not given sufficient opportunity to the assessee in substantiating his claim. Therefore, in the interest of justice, I am setting aside the issues in dispute to the file of the Ld. CIT(A) to decide the same afresh, in view of the decision of the ITAT, SMC-I, Delhi Bench dated 16.6.2016 passed in (AY 2010-11) in the case of Ram Kanwar Rana vs. ITO and any other decision/evidence to be filed by the assessee before him and give sufficient opportunity of being heard to the assessee.
The assessee is directed to appear before the Ld. CIT(A) on 03.12.2018 at 10.00 AM and will remain cooperative in the proceedings and not to take any unnecessary adjournment. There is no need to issue notice, because this order has been pronounced in the Open Court and the Assessee himself has noted the date of appearance before the Ld. CIT(A) on the Order Sheet itself. Further, the delay in dispute i.e. 2 years and 10 months approx. is hereby condoned, subject to the condition that assessee should deposit the cost/compensation of Rs. 20,000/- (Rupees Twenty Thousand) before the Treasury of the ITAT immediately and show the proof thereof to the Ld. CIT(A) on the date of hearing fixed before him.
In the result, Assessee’s appeal is allowed for statistical purposes. Order pronounced on 30-10-2018.