The Assistant Commissioner of Income Tax (Exemptions) Circle-1 , Mangaluru V. M/s A.Shama Rao Foundation , Mangaluru

ITA 173/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2361 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Keywords: Additional evidence
• Section: 143(3); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 173 /BANG/201 8 ASSESSMENT YEAR : 2012 - 13 THE ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTIONS), CIRCLE 1, MANGALURU. VS. M/S. A. SHAMA RAO FOUNDATION, 13-2-116, HOTEL SRINIVAS BUILDING, G.H.S. ROAD, MANGALURU 575 001. PAN: AAATA1629B APPELLANT RESPONDENT APPELLANT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) RESPONDENT BY : SMT. SHEETAL BORKAR, ADVOCATE DATE OF HEARING : 19 . 0 7 .2018 DATE OF PRONOUNCEMENT : 31 . 0 8 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE REVENUE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), MANGALURU DATED 31.10.2017 FOR ASSESSME NT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER. 1. THE CIT(A) IS OPPOSED TO FACTS AND CIRCUMSTANCES OF THE CASE. 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) IS RIGHT IN LAW IN CONSIDERING THE CLAIM OF ADVANCE PA ID TOWARDS PURCHASE OF PROPERTY AND PURCHASE OF PHARMACEUTICAL ITEMS WHICH IS A FRESH CLAIM MADE BEFORE CIT(A) ONLY AND NOT MADE BEFORE THE A.0 DURING THE ASSESSMENT PROCEEDINGS ? 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) IS RIGHT IN LAW IN CONSIDERING THE FRESH CLAIM OF THE ASSESSEE MADE BEFORE THE CIT(A) DURING THE APPELLATE PROCEEDINGS WITHOUT GIVING AN OPPORTUNITY TO A.0 TO GIVE HIS OPINION REGARDING TH E FRESH CLAIM MADE 4. WHETHER THE CIT(A) WAS RIGHT IN LAW IN CONSIDERI NG THE CLAIMS AT ITA NO. 173/BANG/2018 PAGE 2 OF 3 APPEAL STAGE, WHEN THE ASSESSEE SHOULD HAVE MADE A CLAIM AT ASSESSMENT PROCEEDINGS STAGE THROUGH A VALID REVISE D RETURN OF INCOME WITHIN THE STIPULATED TIME U/S 139 AND MADE AVAILABLE BEFORE THE A.0 BEFORE THE CONCLUSION OF THE PROCEEDINGS U/ S 143(3) OF THE ACT 5. WHETHER THE CIT (A) IS RIGHT IN LAW IN CONSIDERI NG THE CLAIM WITHOUT ALLOWING A REASONABLE OPPORTUNITY TO THE A.0 UNDER RULE 46A (3) (A) TO EXAMINE THE EVIDENCE OR-DOCUMENT PRODUCED BY THE ASSESSEE BEFORE CIT (A) 6. FOR THESE AND SUCH OTHER GROUNDS, IT IS URGED TH AT THE ORDER OF THE ASSESSING OFFICER MAY BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ALL OR ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF THE HEAR ING OF THE APPEAL. 3. THE LD. DR OF REVENUE PLACED RELIANCE ON TRIBUNA L ORDER RENDERED IN THE CASE OF JAY BHARAT CO-OP. HOUSING SOCIETY LTD. VS. ITO AS R EPORTED IN [2010] 125 ITD 90 (MUM.). HE SUBMITTED THAT IT WAS HELD BY THE TR IBUNAL IN THIS CASE THAT IF THE ASSESSMENT ORDER IS PASSED BY THE AO BY FOLLOWING T HE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GOETZ (INDIA) LT D. VS. CIT AS REPORTED IN [2006] 284 ITR 323, SUCH AN ORDER COULD NOT BE DIST URBED OR SET ASIDE IN ORDER TO PROVIDE AN OPPORTUNITY TO THE ASSESSEE TO PROVE HIS CLAIM. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, THE RELIEF ALLOWED BY CIT (A) SHOULD BE REVERSED. THE LD. AR OF ASSESSEE SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN THE PRESENT CASE, THE FACTS ARE NOT SIMILAR TO THE CASE CITED BY THE LEARNED DR OF THE REVENUE. WE FIND THAT AS PER THE ASSESSMENT ORDER PASSED BY THE AO, IT IS NOT COMING OUT THAT ANY CLAIM WAS MADE BY THE ASSESSEE BEFORE THE AO WHICH WAS DISALLOWED BY THE AO BY FOLLOWING THE JUDGEMENT OF HONBLE APE X COURT RENDERED IN THE CASE OF GOETZ (INDIA) LTD. VS. CIT (SUPRA) AND THER EFORE, THE RELIANCE PLACED BY LD. DR OF REVENUE ON THIS TRIBUNAL ORDER RENDERED I N THE CASE OF JAY BHARAT CO- OP. HOUSING SOCIETY LTD. VS. ITO (SUPRA) IS MISPLAC ED AND THIS TRIBUNAL ORDER HAS NO RELEVANCE IN THE PRESENT CASE. 5. AS PER THE VARIOUS GROUNDS RAISED BY THE REVENUE BEFORE US, WE FIND THAT IN GROUND NO. 5, THIS IS THE CLAIM OF THE REVENUE THAT THERE IS VIOLATION OF RULE 46A ITA NO. 173/BANG/2018 PAGE 3 OF 3 (3) AND LD. CIT (A) HAS CONSIDERED ADDITIONAL EVIDE NCES WITHOUT GIVING REASONABLE OPPORTUNITY TO THE AO BUT WE FIND THAT I T IS NOTED BY CIT (A) IN PARAS 5.4.3 AND 5.4.4 OF HIS ORDER THAT THERE IS REMAND R EPORT OF THE AO DATED 30.01.2017 AND THERE IS REBUTTAL OF ASSESSEE DATED 20.02.2017. IT IS ALSO SEEN THAT IN PARA 5.4.5 OF THE ORDER OF CIT (A), IT IS N OTED THAT CIT (A) HAS CONSIDERED THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSMENT ORD ER AND THE REMAND REPORT OF THE AO. THE LD. DR OF REVENUE COULD NOT POINT O UT AS TO WHAT ADDITIONAL EVIDENCE HAS BEEN SUBMITTED BY THE ASSESSEE AND ADM ITTED BY THE CIT (A) AND DECISION IS TAKEN BY HIM WITHOUT CONFRONTING THE SA ME TO THE AO. IT IS ALSO SEEN THAT LD. CIT(A) HAS PASSED SPEAKING ORDER AFTER OBT AINING REMAND REPORT FROM THE AO AND BY FOLLOWING THE VARIOUS TRIBUNAL ORDERS SUCH AS RENDERED IN THE CASE OF DCIT(E) VS. PEOPLES EDUCATION SOCIETY IN IT A NO. 1074/BANG/2016 DATED 09.06.2017 AND IN THE CASE OF APOLLO HOSPITAL S EDUCATIONAL TRUST IN ITA NO. 2090/MDS/2012 DATED 21.02.2013 AND THEREFORE, W E FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 31 ST AUGUST, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.