SHREE MAHESH SEVA SAMITI, Amaravati V. PR. CIT- (Exemptions), Pune

ITA 160/NAG/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2212 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 143(3); 27; 263; 11

Judgement Text

1 ITA NO. 160/NAG/2015 . IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 160/NAG/2015 ASSESSMENT YEAR : 2010 - 11. SHREE MAHESH SEVA SAMITI, PR. COMMISSIONER OF INCOME - TAX, AMRAVATI. VS. (EXEMPTIONS), NAGPUR. PAN AAATM147 5F. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.B. ATAL. RESPONDENT : SHRI D. RAVI KUMAR. DATE OF HEARING : 03 - 05 - 2016 DATE OF PRONOUNCEMENT : 31 ST MAY, 2016. O R D E R PER MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX PASSED U/S 263 DATED 27 - 03 - 2015. THE MAIN GRIEVANCE OF THE APPELLANT IS THAT THE LEARNED CIT HAS PASSED THE IMPUGNED ORDER WITHOUT ISSUING A MANDATORY NOTICE U/S 263 OF I.T. ACT. THE MAIN GROUNDS ARE REPRODUCED BELOW : 1. THAT KEEPING IN VIEW THE FACTS OF THE CASE, THE HONBLE CIT (EXEMPTION) ERRED IN HOLDING THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. THE FINDING OF THE C.I.T. (EXEMPTIONS) THAT THE B/F LOSSES OF RS.312322/ - IS NOT AVAILABLE IS NOT CORRECT . 3. THAT THE ORDER PASSED U/S 263 IS WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING NOR ANY SUCH NOTICE WAS ISSUED TO THE ASSESSEE BEFORE PASSING ORDER U/S 263. HENCE THE ORDER ITSELF IS INCORRECT. 2 ITA NO. 160/NAG/2015 . 4. THAT THE ORDER PASSED BY CIT (EXEMPTIONS) IS ERRONEOUS, INVA LID AND DESERVES TO BE QUASHED. 2. AT THE OUTSET WE HAVE ASKED THE LEARNED D.R. MR. D. RA VI KUMAR TO PLACE ON RECORD THE SERVICE OF NOTICE ALLEGED TO BE ISSUED ON 03 - 03 - 2015 U/S 263 OF I.T. ACT. LEARNED D.R. HAS INFORMED THAT THERE WAS A FAX REPORT IN THE NATURE OF MATTER REPORTED FROM PUNE OFFICE. HOWEVER, WE ARE NOT CONVINCED WITH THE SUBMISSIONS OF LEARNED D.R. WE HAD GIVEN OPPORTUNITY TO THE REVENUE DEPARTMENT TO PLACE ON RECORD THE EXACT SERVICE OF NOTICE U/S 263 ISSUED TO THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE WE ARE OF THE VIEW THAT THE GRIEVANCE OF THE APPELLANT IS JUSTIFIED. 3. THE IMPUGNED ORDER WHICH WAS THE SUBJECT MATTER WAS PASSED U/S 143(3) DATED 01 - 02 - 2013. A RETURN OF INCOME AT RS. NIL WAS FILED. HOWEVER, THE ASSESSMENT WAS COMPLETED ON AN INCOME OF RS.9,55,996/ - . EXEMPTION U/S 11 WAS NOT GRANTED AS PER THE ASSESSMENT ORDER. THE ASSESSEE HAS CLAIMED THE EXEMPTION U/S 11 OF I.T. ACT. WHILE PASSING THE ORDER U/S 263 OF I.T. ACT THE LEARNED COMMISSIONER HAS HELD THAT THE BROUGHT FORWARD LOSS ES TO THE EXTENT OF RS.3,12,322/ - WERE NOT TO BE ALLOWED TO BE SET OFF. ON THE OTHER HAND, LEARNED A.R. HAS PLACED BEFORE US THE COMPUTATION OF INCOME OF THE PAST YEARS AND PLEADED THAT THE LOSSES HAVE BEEN DULY ASCERTAINED, THEREFORE, THE ASSESSEE IS ENTITLED TO SET OFF THE LOSSES AGAINST THE INCOME OF THE YEAR UNDER CONSIDERATION. LEARNED A.R. HAS ALSO PLEADED THAT AN OPPORTUNITY SHOULD HAVE BEEN GRANTED BEFORE TAKING A DECISION AGAINST THE ASSESSEE. RELIANCE WAS PLACED ON THE DECISION OF CIT VS. SAT TANDAS MOHANDAS SIDHI 230 ITR 591. 4. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE MERITS INVOLVED, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE DESERVES AN OPPORTUNITY OF HEARING. OTHERWISE ALSO NO PREJUDICE SHA LL BE CAUSED TO THE REVENUE DEPARTMENT IF AN OPPORTUNITY BE GRANTED TO THIS APPELLANT. WE, 3 ITA NO. 160/NAG/2015 . THEREFORE, RESTORE THIS ISSUE BACK TO THE FILE OF LEARNED COMMISSIONER TO BE DECIDED DENOVO AS PER LAW, NEEDLESS TO SAY AFTER PROVIDING AN ADEQUATE OPPORTUNITY OF HE ARING TO THE ASSESSEE. SINCE THE ISSUE HAS BEEN RESTORED BACK, THEREFORE, THE GROUNDS RAISED BY THE APPELLANT MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES ONLY. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED I N THE OPEN COURT ON THIS 31 ST DAY OF MAY, 2016. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 31 ST MAY, 2016. COPY FORWARDED TO : 1. SHREE MAHESH SEVA SAMITI, BADNERA ROAD, AMRAVATI. 2. PR. COMMISSIONER OF INCOME - TAX (EXEMPTIONS), NAGPUR. 3. I.T.O., WARD - 3, AMRAVATI. 4. D.R., ITAT, NAGPUR. 5. GUARD FILE TRUE COPY BY ORDER WAKODE. ASSISTANT REGISTRAR, ITAT, NAGPUR .