All Saints College Society, Nainital V. ACIT, Nainital

ITA 1667/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3746 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 28-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Assessee Lawyers: ASHWANI TANEJA; TARUN KUMAR CAS
• Keywords: Opportunity of being heard
• Section: 234B; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G, NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.1667/DEL/2010 (ASSESSMENT YEAR : 2005-06) ALL SAINTS COLLEGE SOCIETY, VS. ACIT, ALL SAINTS COLLEGE, NAINITAL. NAINITAL. (PAN : AAATA3963E) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI ASHWANI TANEJA & TARUN KUMAR , CAS REVENUE BY : SHRI B. KISHORE, DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF CIT (APPEALS)- II, DEHRADUN DATED 18.11.2008 FOR THE ASSESSMENT YE AR 2005-06. THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS-II), ERRED IN DECIDING THE APPEAL WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLAN T AND ADJUDICATING THE APPEAL EX-PARTE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS-II), ERRED IN LAW AND ON FACTS IN NOT ALLO WING EXEMPTION U/S 11 & 12 OF THE INCOME TAX ACT. 3. THAT THE LEARNED CIT ERRED IN LAW AND ON FACTS I N HOLDING THAT SECTION 11(4A) OF INCOME TAX ACT 1961 IS APPLI CABLE IN THE APPELLANTS CASE. ITA NO.1667/DEL/2010 2 4. THAT THE LEARNED CIT ERRED IN LAW AND ON FACTS O F THE CASE IN RESTRICTING THE APPLICATION OF INCOME TO RS.26,0 0,000/- ONLY AND NOT CONSIDERING THE ADDITION OF RS.84,20,075/- TO FIXED ASSETS AND EXCESS AMOUNT SPENT IN PRECEDING ASSTT. YEARS OF RS.1,25,56,680/- AS APPLICATION OF INCOME. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS-II), ERRED IN CHARGING INTEREST U/S 234B A S THERE WAS NO LIABILITY TO PAY ANY ADVANCE TAX. 6. THAT ANY OTHER RELIEF/RELIEFS, DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE BE GRANTED. 2. AT THE OUTSET OF THE HEARING, LEARNED AR SUBMITT ED THAT THE CIT (A) HAD ADJUDICATED UPON THE APPEAL FILED BY THE ASSESS EE EX-PARTE. THE AR FOR ASSESSEE SUBMITTED THAT AN APPLICATION FOR ADJOURNM ENT WAS FILED AS THE COUNSEL FOR THE ASSESSEE WAS BUSY WITH OTHER TAXATI ON WORK. THE CIT (A) DID NOT GRANT THE ADJOURNMENT AND PROCEEDED TO DECI DE THE APPEAL EX-PARTE. HE ALSO PLEADED THAT ON THE SIMILAR FACTS, ITAT DEL HI BENCH H IN THE CASE OF SHERVOOD DIOCESAN COLLEGE SOCIETY IN ITA NO.650/ DEL/2009 FOR ASSESSMENT YEAR 2005-06 HAS REMANDED THE APPEAL TO THE FILE OF THE CIT (A) WITH A DIRECTION TO DECIDE ON MERITS AFTER HEARING THE ASSESSEE AND PLEADED THAT THE APPEAL MAY BE RESTORED TO THE FILE OF THE CIT (A) TO BE DECIDED AFRESH AFTER HEARING AND ASSESSEE. HE ALSO PROMIS ED THAT HE WILL APPEAR BEFORE THE CIT (A) WITHIN THREE MONTHS FROM THE DAT E OF THE ORDER RECEIVED BY HIM. 3. LEARNED DR SUBMITTED THAT THE ASSESSEE HAS NOT C OMPLIED ON TWO OCCASIONS, THEREFORE, IF THE APPEAL IS SET ASIDE TO THE CIT (A) THEN HE SHOULD BE DIRECTED TO APPEAR BEFORE THE CIT (A). ITA NO.1667/DEL/2010 3 4. AFTER HEARING BOTH THE SIDES, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND EQUITY, IT IS PROPER TO RESTORE THE MAT TER BACK TO CIT (A) TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. WE ORDER ACCORDINGLY. THE ASSESSEE IS ALSO DIRECTED T O APPEAR BEFORE THE CIT (A) WITHIN THREE MONTHS FROM THE DATE OF THE ORDER RECEIVED BY IT. KEEPING THESE FACTS IN VIEW, WE RESTORE THE MATTER BACK TO CIT (A) AND DIRECT THE CIT (A) TO DECIDE THE MATTER AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE 15 TH DAY OF JUNE 2009 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 15 TH JUNE, 2010 TS COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. CIT(A)-II, DEHRADUN. 5. DR, ITAT. ASSTT.REGISTRAR ITAT, NEW DELHI.