CMJ Foundation, Shillong. V. Pr, CIT., Shillong

ITA 126/GTY/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9037 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2021
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JASPAL SINGH SETHI
• Keywords: Earning of tax free income; Additional evidence
• Section: 68; 12; 11; 143(3); 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL “GAUHATI” BENCH, KOLKATA (E-COURT HEARING AT KOLKATA) BEFORE HON’BLE SHRI LALIT KUMAR, JM AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM आयकरअपील सं./ I.T.A. No. 126/Gau/2019 (िनधाŊरण वषŊ / Assessment Year: 2012-13) M/s C.M.J. Foundation Modrina Mansion Laitumkharh, Shillong – 793003 बनाम/ Vs. ACIT Circle – Shillong Laitumkhrag ̾थायीलेखासं./जीआइआरसं./PAN/GIR No. AAATC-6117-A (अपीलाथŎ/Appellant) : (ŮȑथŎ / Respondent) Assessee by : Shri Jaspal Singh Sethi, Advocate-Ld.AR Revenue by : Shri N.T. Sherpa, JCIT, Ld. Sr. DR सुनवाई की तारीख/ Date of Hearing : 09/11/2021 घोषणा की तारीख / Date of Pronouncement : 09/11/2021 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by assessee for Assessment Year (AY) 2012-13 arises out of the order of Ld. Commissioner of Income Tax (Appeals), Shillong [CIT(A)] dated 30.01.2019 in the matter of assessment framed by the Ld. AO u/s 143(3) of the Income Tax Act, 1961 on 31.03.2015. The grounds urged by the assessee read as under: 1.1. That the order as passed by the learned Commissioner of Income Tax (Appeals) is against law and facts of the case. 1.2. That the appellant is a trust having exemption u/s. 11 of the I.T. Act and is assessed to ACIT (Exemptions) under the jurisdiction of CIT (Exemptions). That the learned Commissioner of Income Tax has ignored the fact that the assessment order as passed is without jurisdiction. 2.1. That the learned Commissioner of Income Tax (Appeals) has erred in completing the appellate proceedings without providing adequate opportunity to the appellant. 2 2.2. That the learned Commissioner of Income Tax (Appeals) has erred in completing the appellate proceedings without waiting for the remand report from the Assessing Officer when application under Rule 6A of the I.T. Rules duly filed and accepted and proceedings of remand report before the Assessing Officer was pending. 2.3. That the learned Commissioner of Income Tax (Appeals) has erred is not adjudicating the application under Rule 6A of the I.T. Rules. 2.4. That the learned Commissioner of Income Tax (Appeals) has erred in passing the order when the matter was adjourned sine- die. 3.1. That the learned Commissioner of Inco me Tax has erred in confirming the addition of Rs. 2,91,52,800/- without appreciating the submissions of the appellant and by selective reading of the submissions. 3.2. That the learned Commissioner of Income Tax (Appeals) has misinterpreted the fact that the Income by way of agricultural transactions were included in operative income and have not been claimed as tax exempt income. 4.1 That the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs.8,57,61,387/- by selective reading of the submissions of the assessee. 4.2. The learned Commissioner of Income Tax (Appeals) has accepted that the educational activities were going on in the university (which fact was ignored by the Assessing Officer). However, the learned Commissioner of Income Tax (Appeals) has still gone on to confirm the addition without appreciating the evidences filed. 5. That the learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs.4,50,47,712/- by ignoring the submissions made by the appellant and the evidences filed by the appellant in the form of balance sheet and bank statements. 6. That the assessment order as passed is not sustainable on the facts and circumstances of the case. 2. Drawing our attention to ground no.1.2, Ld. AR challenged the jurisdiction of Ld. AO in framing the assessment. For this, Ld. AR referred to CBDT Notification S.O.2754 (E) dated 22/10/2014, a copy of which has been kept on page nos.9 to 13 of the paper book. This notification is stated to be effective from 15/11/2014. The Ld. AR submitted that in terms of this notification, the assessee’s jurisdiction stood transferred w.e.f. 15/11/2014 which is also evident from the letter of Ld. Pr. CIT-Shillong (dated 12/02/2019 kept on page no.14 of the paper-book) shifting case records to Ld. CIT(exemptions) at Kolkata. In the said background, Ld. AR submitted that Ld. DCIT-Shillong had no jurisdiction to frame the assessment for the year. To support the same, 3 Ld. AR relied on various judicial pronouncements, the copies of which have also been placed on record. On merits, it was submitted by Ld. AR that the matter may be remanded back to the file of Ld. CIT(A) for fresh adjudication after considering the remand report of Ld. AO. The Ld. Sr. DR, on the other hand, submitted that no intimation of change in jurisdiction was intimated by the assessee to Ld. AO and the notices were issued well before the date of issue of notification. The Ld. Sr. DR also submitted that the jurisdiction has been challenged for the first time by the assessee before Tribunal. Having heard rival submissions, our adjudication would be as under. 3. The material facts are that an assessment was framed against the assessee u/s 143(3) on 31/03/2015 wherein the exemption claimed by the assessee trust u/s 11 & 12 was denied and net agricultural income as well as university receipts was brought to tax u/s 68 of the Act. The assessee was also saddled with addition of undisclosed investment in fixed deposits. The additions were made primarily for want of sufficient satisfactory evidences on the part of the assessee. 4. During appellate proceedings, the assessee assailed the additions, inter-alia, on the ground that the records were seized by the authorities and the case could not be presented properly during assessment proceedings. However, since no new material was placed before Ld. CIT(A), the action of Ld. AO was confirmed against which the assessee is in further appeal before us. 5. Upon careful consideration of orders of lower authorities, it could be gathered that the additions have primarily been made by Ld. AO since the assessee could not produce satisfactory evidences during assessment proceedings. The reason adduced was that the records 4 were seized by the authorities. We find that the impugned order was passed on 30/01/2019, however, the assessee has made an application u/r 46A on 25/09/2018 for admission of additional evidences with a request to send the same for the comments of Ld. AO. As per the submissions before us, these additional evidences would have material bearing on the assessment and therefore, Ld. AR has pleaded for restoration of matter back to the file of Ld. CIT(A) to frame fresh assessment after considering the remand report of Ld. AO. Another pertinent fact is that Ld. AR has assailed the jurisdiction of Ld. AO for the first time before us. The factual matrix of the same is required to be brought on record particularly in view of the submissions of Ld. DR that the fact of change in jurisdiction was never brought to the notice of Ld. AO. 6. Keeping in view the totality of facts and circumstances, we set- aside the impugned order and restore the matter back to the file of Ld. CIT(A) for fresh adjudication after considering Ld. AO’s remand report / comments on additional evidences and assessee’s submissions. At the same time, we admit the issue of jurisdiction as raised by Ld. AR and direct Ld. CIT(A) to bring on record factual matrix of the same and adjudicate the issue of jurisdiction in the light of submissions made by Ld. AR before us. All the issues are kept open. 7. Resultantly, the appeal stand allowed for statistical purposes. Order pronounced on 09 th November, 2021. Sd/- Sd/- (Lalit Kumar) (Manoj Kumar Aggarwal) Ɋाियक सद˟ / Judicial Member लेखा सद˟ / Accountant Member Kolkata; िदनांक Dated: 09/11/2021 Biswajit, Sr. P.S. 5 आदेशकीŮितिलिपअŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ/ The Appellant: C.M.J. Foundation 2. ŮȑथŎ/ The Respondent: ACIT, Circle, Shillong 3. आयकरआयुƅ(अपील) / The CIT(A) 4. आयकरआयुƅ/ CIT– concerned 5. िवभागीयŮितिनिध, आयकरअपीलीयअिधकरण, DR, ITAT, Guwahati 6. गाडŊफाईल / Guard File आदेशानुसार/ BY ORDER, Senior P.S आयकरअपीलीयअिधकरण, ITAT, Kolkata.