M/s. Adarsh Ghanyodya Vikas Samiti, Tonk V. Deputy Commissioner Of Income Tax, Jaipur

ITA 136/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2428 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DHK
• Assessee Lawyers: NIKHILESH KATARIA
• Keywords: Business income; Condonation of delay; Set aside
• Section: 271(1)(c); 143(3); 142(1); 12A; 143(2); 68; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NOS. 135 TO 137/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12. M/S. ADARSH GHANYODYA VIKAS SAMITI, C/O SHIV TRADING CO., OPP. SABIL SHAH KI CHOWKI, NEAR MADINA MASJID, KOTA. CUKE VS. THE DCIT, CIRCLE-7, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AACTA 1283 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIKHILESH KATARIA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.P. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29.08.2019. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 02/09/2019. VKNS'K@ ORDER PER BENCH : THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST THE THREE SEPARATE ORDERS OF LD. CIT (APPEALS)-3, JAIPUR ALL DATED 18. 12.2018 ARISING FROM ASSESSMENT ORDER PASSED UNDER SECTION 144, PENALTY ORDER PASSE D UNDER SECTION 271(1)(B) AND PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE IT ACT RESPECTIVELY. 2. THE ASSESSEE IS A REGISTERED SOCIETY RUNNING AN EDUCATIONAL INSTITUTION. THE ASSESSEE IS FUNDED BY THE GOVERNMENT AS IT RUNS EDU CATIONAL INSTITUTION FOR PHYSICALLY CHALLENGED CHILDREN. THE ASSESSEE FILED ITS RETURN OF INCOME ON 31 ST MARCH, 2012 DECLARING TOTAL INCOME OF RS. 74,991/-. SINCE NOBOD Y HAS APPEARED BEFORE THE AO AND EVEN NO EVIDENCE OR DETAILS AS CALLED FOR BY TH E AO WAS FILED DURING THE 2 ITA NOS. 135 TO 137/JP/2019 ADARSH GHANYODYA VIKAS SAMITI, TONK. ASSESSMENT PROCEEDINGS AND IN RESPONSE TO THE VARIO US NOTICES ISSUED BY THE AO, THE AO FRAMED THE ASSESSMENT UNDER SECTION 144 BY A SSESSING THE INCOME AT RS.20,66,186/-. THUS THE AO DENIED THE CLAIM OF EX EMPTION UNDER SECTION 10(23C) AND SECTION 12A OF THE IT ACT AND ALSO MADE THE ADD ITION UNDER SECTION 68 OF THE ACT. THE ASSESSEE CHALLENGED THE SAID ACTION OF TH E AO BEFORE THE LD. CIT (A). HOWEVER, THE APPEALS FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER AS WELL AS THE PENALTY LEVIED UNDER SECTION 271(1)(B) AND 271( 1)(C) OF THE IT ACT WERE BELATED BY 352 DAYS, 396 DAYS AND 166 DAYS RESPECTIVELY. T HE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF DELAY AND EXPLAINED THE CAUSE OF DELAY BEING NON RECEIPT OF THE NOTICE ISSUED BY THE AO AS WELL AS THE ORDERS PASSE D BY THE AO DUE TO THE SECRETARY OF THE ASSESSEE SOCIETY WAS OUT OF PLACE AS WELL AS CHANGE OF ADDRESS OF THE ASSESSEE. THE LD. CIT (A) DID NOT ACCEPT THE EXPLA NATION OF THE ASSESSEE FOR CONDONATION OF DELAY AND CONSEQUENTLY DISMISSED ALL THE THREE APPEALS IN LIMINE BEING BARRED BY LIMITATION. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF DELAY AND ALSO F ILED THE COPY OF AFFIDAVIT WHICH WAS FILED BEFORE THE AO EXPLAINING THE CAUSE OF NON APPEARANCE BEFORE THE AO. THE LD. A/R HAS THUS CONTENDED THAT SINCE THE NOTICES W ERE ISSUED AT THE OLD ADDRESS, THE ASSESSEE DID NOT RECEIVE THE SAME WHICH RESULTED IN NON APPEARANCE BEFORE THE AO WHEREAS FOR THE ASSESSMENT YEAR 2012-13 THE AO ISSU ED NOTICES AT THE CURRENT ADDRESS AND ASSESSEE DULY ATTENDED THE PROCEEDINGS BEFORE THE AO FOR THE ASSESSMENT YEAR 2012-13. HE THUS SUBMITTED THAT TH E AO HAS ACCEPTED THE RETURNED INCOME WHILE PASSING THE ASSESSMENT UNDER SECTION 143(3) FOR THE 3 ITA NOS. 135 TO 137/JP/2019 ADARSH GHANYODYA VIKAS SAMITI, TONK. ASSESSMENT YEAR 2012-13. AT THE SAME TIME, THE PROC EEDINGS FOR THE YEAR UNDER CONSIDERATION WERE ALSO PENDING. HOWEVER, THE AO HA S ISSUED THE NOTICE AT A DIFFERENT ADDRESS AND THUS THE ASSESSEE DID NOT REC EIVE THE NOTICE AS WELL AS THE ORDERS PASSED BY THE AO. PRIOR TO THE MONTH OF FEBR UARY, 2015 WHEN THE SECRETARY OF THE ASSESSEE SOCIETY CAME TO KNOW ABOUT THE DEMA ND RAISED BY THE AO, IMMEDIATELY THE ASSESSEE OBTAINED THE CERTIFIED COP IES OF THE ORDERS AND FILED THE APPEAL BEFORE THE LD. CIT (A). THUS THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE IS A SOCIETY AND RUNNING THE EDUCATIONAL INSTITUTION FOR PHYSICALLY CHALLENGED CHILDREN FOR WHICH THE ASSESSEE SOCIETY IS FUNDED BY THE GOVERNM ENT AND, THEREFORE, THERE WAS NO REASON FOR AVOIDING THE PROCEEDINGS EITHER BEFOR E THE AO OR TO DELAY IN FILING THE APPEAL BEFORE THE LD. CIT (A). HE HAS THUS CONTEND ED THAT NOTHING COULD BE ACHIEVED BY THE ASSESSEE BY FILING THE APPEAL BELAT EDLY BEFORE THE LD. CIT (A). THUS THE LD. A/R HAS SUBMITTED THAT THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT (APPEALS) WAS NEITHER INTENTIONAL NOR WILLFUL BUT D UE TO UNAVOIDABLE CIRCUMSTANCES. SINCE THE AO HAS MADE UNREASONABLE AND UNJUST ADDIT ION IN THE ASSESSMENT ORDER PASSED EX PARTE, THEREFORE, THE LD. CIT (A) OUGHT T O HAVE DECIDED THE APPEAL OF THE ASSESSEE ON MERIT INSTEAD OF REJECTING IN LIMINE. THE LD. A/R HAS THUS PRAYED THAT THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT ( A) MAY BE CONDONED AND THE MATTER MAY BE REMITTED TO THE RECORD OF THE AO FOR DECIDIN G AFRESH AS THE ASSESSMENT ORDER WAS ALSO PASSED EX PARTE. 4. ON THE OTHER HAND, THE LD. D/R HAS OBJECTED TO T HE CONDONATION OF DELAY AND SUBMITTED THAT THE ASSESSEE HIMSELF HAS PROVIDED TH E ADDRESS TO THE AO AS WELL AS IN FORM NO. 35 TO WHICH ADDRESS THE AO ISSUED THE NOTI CES AND ALSO SERVED THE 4 ITA NOS. 135 TO 137/JP/2019 ADARSH GHANYODYA VIKAS SAMITI, TONK. ASSESSMENT ORDER. HE HAS FURTHER SUBMITTED THAT EVE N IN FORM NO. 36 THE ASSESSEE HAS GIVEN THE SAME ADDRESS WHICH IS GIVEN IN THE RE TURN OF INCOME. THEREFORE, THE ASSESSEE CANNOT BLAME THE AO IF THE NOTICES AND ASS ESSMENT ORDER WERE SENT AT THE ADDRESS GIVEN BY THE ASSESSEE ITSELF. HE HAS RELIED UPON THE ORDER OF THE LD. CIT (A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSMENT ORDER WAS PASSED EX PARTE WH EREBY THE AO TREATED THE ENTIRE RECEIPTS OF THE ASSESSEE AS BUSINESS RECEIPT S AND ALLOWED 50% AS EXPENSES ON ESTIMATION BASIS. THE AO ASSESSED THE BALANCE AMOUN T AS BUSINESS INCOME OF THE ASSESSEE APART FROM MAKING THE ADDITION UNDER SECTI ON 68. WE FURTHER NOTE THAT FOR THE ASSESSMENT YEAR 2012-13 THE AO HAS ACCEPTED THE RETURNED INCOME OF THE ASSESSEE AS IN THE SAID ASSESSMENT YEAR THE ASSESSE E HAS APPEARED BEFORE THE AO IN RESPONSE TO THE NOTICES ISSUED UNDER SECTION 143(2) AND 142(1) OF THE ACT. THE AO HAS SPECIFICALLY MENTIONED THAT IN RESPONSE TO THE NOTICES SHRI SURENDRA KUMAR SHARMA, SECRETARY OF THE ASSESSEE SOCIETY ATTENDED AND SUBMITTED THE DETAILED RECORD AND INFORMATION. ONCE THE AO AFTER CONSIDER ING THE RELEVANT RECORD ACCEPTED THE CLAIM OF THE ASSESSEE AS WELL AS THE RETURNED I NCOME FOR THE ASSESSMENT YEAR 2012-13, THEN THE ADDITIONS MADE BY THE AO FOR THE YEAR UNDER CONSIDERATION FOR WANT OF NECESSARY RECORD AND DETAILS, REQUIRES RE-C ONSIDERATION AS THE ASSESSEE IS SEEKING THE OPPORTUNITY OF HEARING AND TO PRODUCE T HE RELEVANT DETAILS AND EVIDENCES. THOUGH THERE WAS A DELAY IN FILING THE APPEALS BEFORE THE LD. CIT (A), HOWEVER, WE FIND THAT DESPITE THE CASUAL AND NEGLIG ENT CONDUCT OF THE ASSESSEE, THE MATTER OUGHT TO HAVE BEEN DECIDED ON MERIT WHEN THE ASSESSEE SOCIETY IS REPRESENTED BY ITS SECRETARY AND IT WAS THE LAPSE O N THE PART OF THE SECRETARY FOR NOT 5 ITA NOS. 135 TO 137/JP/2019 ADARSH GHANYODYA VIKAS SAMITI, TONK. ATTENDING THE PROCEEDINGS AS WELL AS UPDATING THE A DDRESS OF THE ASSESSEE SOCIETY BEFORE THE AO. THEREFORE, ONCE THE AO HAS ACCEPTED THE RETURNED INCOME FOR THE ASSESSMENT YEAR 2012-13, THEN MAKING THE HUGE ADDIT ION FOR THE YEAR UNDER CONSIDERATION WHICH IS OTHERWISE NOT SUSTAINABLE IF ASSESSEE WOULD HAVE PARTICIPATED IN THE PROCEEDINGS. HENCE IN THE FACTS AND CIRCUMST ANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY IN FILING THE THREE APPEALS BEFORE THE LD. CIT (A) SUBJECT TO THE COST OF RS. 1,000/- EACH. S INCE THE LD. CIT (A) HAS NOT DECIDED THE APPEALS ON MERIT AND THE AO HAS ALSO PA SSED THE EX PARTE ORDER, THEREFORE, THE MATTER ARISING FROM THE EX PARTE ASS ESSMENT ORDER IS SET ASIDE TO THE RECORD OF THE AO FOR DECIDING THE SAME AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THE OTHER APPEALS BEING ARISING F ROM PENALTY ORDERS UNDER SECTION 271(1)(B) AND 271(1)(C) ARE CONSEQUENTIAL, THEREFOR E, THE SAME ARE ALSO SET ASIDE TO THE RECORD OF THE AO FOR DECIDING AFRESH AFTER THE OUTCOME OF THE SAID SET ASIDE ASSESSMENT PROCEEDINGS. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/09/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKWO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/09/2019. DAS/ 6 ITA NOS. 135 TO 137/JP/2019 ADARSH GHANYODYA VIKAS SAMITI, TONK. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-ADARSH GHANYODYA VIKAS SAMITI, TONK. 2. IZR;FKHZ@ THE RESPONDENT-THE DCIT, CIRCLE-7, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 135 TO 137/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR