Hans Raj Smarak Society, New Delhi V. ADIT (E), New Delhi

ITA 1541/DEL/2012

• Counselvise Citation: 154120114 RSA 2012
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: VIBHA MAHAJAN
• Keywords: Charitable institution; Opportunity of being heard
• Section: 12A; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A.NO.1541/DEL/2012 ASSESSMENT YEAR : 2008-09 HANS RAJ SMARAK SOCIETY, ASSTT. DIRECTOR OF INCOM E-TAX (E), J-5/3, KRISHNA NAGAR, VS. TRUST CIRCLE-II, NEW D ELHI. DELHI-110 051. PAN: AAATH0351B (APPELLANT) (RESPONDENT) APPELLANT BY : MS. VIBHA MAHAJA N RESPONDENT BY : SHRI SATPAL SINGH, SR. DR O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 24.02.2012 OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XII, NEW DELHI , PERTAINING TO THE ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED C.I.T. (A) IS BAD IN L AW IN SO FAR AS IT RELATES TO THE UPHOLDING OF THE AMOUNT OF RS.38,39,447.00 A S THE TAXABLE INCOME OF THE APPELLANT. 2. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ON F ACTS ON HAVING ENHANCED THE TOTAL ASSESSED INCOME OF THE APPELLANT BY RS.9,87,137.00. 3. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ON F ACTS IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN HAVING NOT ALLOW ED THE BENEFIT OF SECTION 11 & 12 OF THE INCOME TAX ACT 1961. 4. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ON F ACTS IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN HAVING TREATED T HE APPELLANT SOCIETY AS A NON-CHARITABLE INSTITUTION, WITHOUT GIVING AN OPPOR TUNITY OF THE APPELLANT. 5. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN HAVING CONCLUDED THAT THE APPELLANT ITA NO.1541/DEL/2012 2 SOCIETY IS ENGAGED IN PROFIT MAKING ACTIVITIES RATH ER THAN CHARITABLE ACTIVITIES. 6. THE LEARNED C.I.T. (A) HAS ERRED IN LAW AND ON F ACTS IS WRONG TO CONCLUDE THAT C.I.T.(A) IS NOT THE CORRECT FORUM TO DECIDE AND ADJUDICATE UPON THE ACTION OF THE ASSESSING OFFICER IN HAVING TREATED THE APPELLANT SOCIETY AS A NON CHARITABLE INSTITUTION AND HAVING DENIED THE BENEFITS OF SECTION 11 OF THE INCOME TAX ACT 1961. 7. THE ORDER PASSED BY THE LEARNED C.I.T.(A) IS OTH ERWISE BAD IN LAW AND UPON THE FACTS. 2. HOWEVER AT THE TIME OF HEARING THE PARTIES WERE HEARD ONLY IN REGARD TO GROUND NO.4. WE HAVE CONSIDERED THE SUBMISSIONS MADE AND THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN REGARD TO THE CANCELLATION O F THE ASSESSEES REGISTRATION GRANTED UNDER SEC. 12A WHICH WAS CANCELLED WITH EFFECT FROM 2008-09. THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HELD THAT THE DIT(E) WAS NOT JUSTIFIED IN CANCELLING THE REGISTRATION VIDE ITS ORDER DATED 20 TH JULY, 2012 IN ITA NO.1041/DEL/2012. COPY OF THE SAME WAS PLACED BEFORE THE BENCH IN SUPPORT OF THE ASSERTION. 3. CONSIDERING THE SAME HAVING HEARD BOTH THE PARTI ES AND TAKING INTO CONSIDERATION THE IMPUGNED ORDER, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, IT WILL BE APPROPRIATE TO SET ASIDE THE IMPUG NED ORDER AND RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF SPEAKING ORDER TAKING INTO CONSIDERATION THE ORDER OF ITAT IN ASSESSEES OWN CASE. NEEDLESS TO SAY A REASONABLE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE. IN VIEW OF THE REASONING AND THE FINDING ARRIVED AT IN GROUND NO.4 RAISED BY THE ASSESSEE, THE ISSUE OF ENHANCEMENT AGITATED BY THE ASSESSEE DOES NOT SURVIVE AS THE ENTIRE IMPUGNED ORDER IS SET ASIDE AND THE LEARNED CIT(A) IS DIRECTED TO DECIDE THE ISSUE AFRESH ITA NO.1541/DEL/2012 3 IN ACCORDANCE WITH LAW. THE SAID ORDER WAS PRONOUN CED IN THE PRESENCE OF THE ASSESSEE AT THE TIME OF HEARING. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (T.S. KAPOOR) (DIVA SINGH) ACCOUNTANT MEMER JUDIC IAL MEMBER DATED: 26 TH NOVEMBER, 2012. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.