M/s Karnataka Badminton Association, Bangalore V. DDIT, Bangalore

ITA 1106/BANG/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2823 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-02-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI J
• Assessee Lawyers: S ANNAMALAI
• Keywords: Opportunity of being heard; Bonafide belief; Condonation of delay
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, A M AND SHRI PAVAN KUMAR GADALE, JM PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 1 10 6 /BANG/201 6 ASSESSMENT YEAR : 20 11 1 2 M/S KARNATAKA BADMINTON ASSOCIATION , #4, JASMA BHAWAN ROAD, MILLERS TANK BED AREA, B E NGAL URU - 5600 5 2 P A N : A AATK1590K VS. D D IT, CIRCLE 1 7 ( 1 ) , B ENGALURU APPELLANT RESPONDENT ASSESSEE BY : S HREE S. ANNAMALAI, ADVOCATE REVENUE BY : S MT. R. PREMI , J CIT DR DATE OF HEARING : 18 . 0 2 .20 20 DATE OF PRONOUNCEMENT : 13 . 0 3 .20 20 O R D E R P ER SHRI A.K. GARODIA, AM: THIS APPEAL I S FILED BY THE ASSESS E E AND IT IS DIRECTED AGAINST T HE ORDER OF CIT(A) 1 4 BENGALURU DATED 0 2 . 0 2.201 6 . 2. THIS APPEAL IS FILED BY THE ASSESSEE AFTER A DELAY OF 4 2 DAYS AND THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT IN WHICH IT IS SUBMITTED THAT THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT THE APPEAL OF THE ASSESSEE BEFORE CI T (A) WAS ACADEMIC ONLY BECAUSE IN THE PRESENT YEAR, THE ASSESSED INCOME WAS NIL AND HENCE, EVEN THIS FINDING OF THE AO THAT THE ASSESSEE IS HIT BY PROVISO TO SECTION 2 (15) IS NOT REQUIRED TO BE CHALLENGED BECAUSE OF NIL ASSESSE D INCOME AND UNDER THIS BELIEF, HE WITHDRAWN THE APPEAL BEFORE CIT (A) AND DID NOT FILE ANY APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER OF CIT (A) ASPER WHICH THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN BUT LATER WHEN THE ASSESSEE CONSU LTED A COUNSEL IN RESPECT OF A. Y. 2013 14 WHERE ALSO, THE ASSESSEES CLAIM FOR EXEMPTION U/S 11 WAS REJECTED ON TH AT BASIS ONLY THAT THE ASSESSEE IS HIT BY PROVISO TO SECTION 2 (15), THE ASSESSEE WAS ADVISED TO FILE APPEAL BEFORE THE TRIBUNAL FOR THE P RESENT YEAR ALSO AND AFTER THAT, THE PRESENT APPEAL WAS FILED. I N COURSE OF HEARING, LEARNED AR OF THE ASSESSEE SUBMITTED THAT UNDER THESE FACTS, THE DELAY SHOULD BE CONDONED AND THE APPEAL SHOULD BE ADMITTED . CONSIDERING THESE FACTS AND IN THE INTEREST OF JUSTICE , THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3 . REGARDING MERIT OF THE APPEAL, IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT THE ASSESSEE HAD WITHDRAWN THE APPEAL BEFORE CIT (A) UNDER WRONG ITA NO S . 1106 / ( B)/20 1 6 PAGE 2 OF 2 UNDERSTANDING THAT THE APPEAL IS ACADEMIC AND THEREFORE, THIS WITHDRAWAL SHOULD BE IGNORED AND THE MATTER MAY BE RESTORED TO CIT (A) FOR A DECISION ON MERIT. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). SHE ALSO SUBMITTED THAT ONCE THE ASSESSEE HAS WITHDRAWN T HE APPEAL BEFORE CIT (A), NOW THE APPEAL CANNOT BE RESTORED TO CIT (A) FOR DECISION ON MERIT. 4 . WE HAVE CONSIDERED THE RIVAL SUBMISSION. WE FIND FORCE IN THE SUBMISSION OF THE LEARNED AR OF THE ASSESSEE THAT APPEAL WAS WITHDRAWN BY THE ASSESSEE UNDER WRON G UNDERSTANDING THAT THE APPEAL IS ACADEMIC BECAUSE WE FIND THAT ALTHOUGH A FINDING IS GIVEN IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS NOT ELIGIBLE F OR EXEMPTION U/S 11 BECAUSE THIS IS THE ALLEGATION AND DECISION OF THE AO THAT THE ASSESSEE IS HIT BY TH E PROVISO TO SECTION 2 (15), THE ULTIMATE ASSESSED INCOME IS NIL BECAUSE THERE IS NO TAXABLE INCOME EVEN WITHOUT EXEMPTION U/S 11AND THEREFORE, ONE CAN HAVE THIS IMPRESSION THAT IN THE PRESENT YEAR, THE APPEAL IS ACADEMIC BUT SINCE, THE DECISION OF AO ABOU T NON ELIGIBILITY OF THE ASSESSEE FOR EXEMPTION U/S 11 BECAUSE OF THIS ALLEGATION THAT THE ASSESSEE IS HIT BY PROVISO TO SECTION 2 (15) WILL OPERATE AGAINST THE ASSESSEE IN SUBSEQUENT YEAR ALSO, IN FACT THE APPEAL IN ITSELF IS NOT ACADEMIC. HENCE, WE RESTO RE THIS MATTER TO CIT (A) FOR A DECISION ON MERIT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5 . IN THE RESULT, THE A PPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE FEBRUARY , 20 20 . / N S/ COPY TO: 1. APPELLANT 4. CIT (A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.