Adarsh Bal Niketan , Roorkee V. ITO (Exemption), Dehradun

ITA 176/DDN/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7824 (ITAT-DEHRADUN)
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 14-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Principle of natural justice; Period of limitation; Corroborative evidences; Time period of passing order; Set aside
• Section: 12; 154; 11; 12A; 12AA; 10B; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN BENCH, DEHRADUN BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI V.P. RAO, JUDICIAL MEMBER ITA No. 176/DDN/2019 Assessment Years: 2015-16 Adarsh Bal Niketan, vs. ITO (Exemption), IIT Campus, Roorkee. Dehradun. PAN : AAAAV2827R (Appellant) (Respondents) Appellant by : Sh. S.K. Gupta, Advocate Respondent by: Sh. N.C. Upadhyaya, Sr. DR Date of hearing: 24.11.2021 Date of order : 24.11.2021 ORDER PER V.P. RAO, J.M.: This appeal by the assessee is directed against the order dated 26.07.2019 of CIT(A) for the assessment year 2015-16. The assessee has raised following grounds : “1. That on facts and circumstances of the case, the order passed by the Ld. CIT(A) is bad both in eyes of law and on facts. 2. That Ld. CIT (A) has erred in upholding addition of Rs. 12, 15,966/- imposed by Income Tax Officer (Exemption), Dehradun in its order u/s 154 of the Income Tax Act, 1961. 2 3. That The Ld. CIT(A) has erred on facts and in law sustaining with addition made by Income Tax Officer (Exemption) without going through the facts, statutory provisions as well as explanation filed during course of assessment proceedings. 4. That the Ld. CIT (A) has erred on facts and in law by not going through the provisions u/s 10(23)(vi) of the Income Tax Act,1961 while it was main grounds of appeal of the Assessee. Even it its order there is no discussion about exemption under section 10(23)(C)(vi) of the Income Tax Act,1961. 5. That the Ld. CIT(A) has erred on facts and in law by not complying with the provisions of 250(6) because the Assessing officer has issued Notice u/s 139(9) on 02/05/2016 and further issued reminder on 08/06/2016. The Assessee has complied and filed ITR u/s 139(9) on 10/06/2016 wherein the exemption u/s 10(23(C) (vi) had been claimed and the Assessing officer has rejected this Return and processed Original return without providing any opportunity of being heard and Ld CIT (A) has ignored the claim of assessee us 10(23(C')(vi) during disposal of Appeal. 6. The Ld. CIT(A) has rejected the citation quoted by the assessee "CIT vs Nagpur Hotel Association [ 2001J 247 ITR 201/114 Taxman 255 by stating that the assessment year involved would be much earlier, therefore it has no application of facts of the present case relevant to AY 2015-16 and simultaneously CIT(A) has placed the reliance on the same judgment in its order which is contrary to each other. 7. The Assessee has submitted the Application in Form 10B manually to Income Tax Officer, Ward-1, Roorkee and Ld. CIT(A). The Ld. CIT(A) has rejected the view of assessee because the assessee has not addressed the Application in form 10B to correct jurisdictional officer while at the time of filling of ITR the jurisdictional officer was reflected at E -filling Portal as "ITO Ward-1, Roorkee" which is also printed on Acknowledgement of ITR and later on it has been shifted by Income Tax Officer, Ward(l), Roorkee to Income Tax Officer, 3 Exemption Dehradun and whenever jurisdiction is being changed by the department all the records, applications received should also be transferred to the right jurisdictional officer. 8. That the impugned Appellate order is arbitrary, illegal, bad in law and in violation of principle of Natural Justice. 2. The assessee is a society and granted registration u/s. 12AA of the Income-tax Act. The assessee was also holding exemption certificate u/s. 10(23C)(vi) of the Act. The assessee filed its return of income on 29.03.2016 wherein, the CPC found some defects and issued notice u/s. 139(9). In response, the assessee claimed to have rectified the defect and claimed exemption u/s. 10(23C)(vi)of the Act. However, the CPC rejected the return of income submitted in response to notice issued u/s. 139(9) of the Act and processed the original return of income u/s. 143(1) and thereby made an adjustment to the tune of Rs.3,46,69,080/- by denying the claim of exemption u/s. 11 and 12 as well as section 10(23C)(vi) of the Act. Aggrieved by the adjustment made by the CPC while processing the return of income u/s. 143(1), the assessee filed petition u/s. 154 of the Act with the Income-tax Officer (Exemption) whereby the Assessing Officer made an addition on account of short fall of application of income to the tune of Rs.12,15,966/- by disallowing the claim of depreciation of Rs.15,98,140/-. The assessee challenged the order passed u/s. 154 before the ld. CIT(A)and contended that the addition made by the Assessing Officer on account of short fall 4 of utilization of income is not justified when the assessee submitted Form 10 to the department on 30.10.2016 by speed post dated 30.10.2016. The assessee further contended that the income is also exempt u/s. 10(23C)(vi) of the Act. The CIT(A) has dismissed the appeal of the assessee on technical ground of submitting the Form- 10 to the wrong authority and not to the concerned Assessing Officer. Even the claim of exemption u/s. 10(23C)(vi) was not considered by the ld. CIT(A). 3. Before the Tribunal, ld. AR of the assessee has submitted that the CIT(A) has dismissed the appeal of the assessee on technical ground without deciding the issue on merits. He has further submitted that the assessee relied upon various case laws on the point which were not considered and appreciated by the CIT(A). He has thus prayed that the matter may be set aside to the record of the Assessing Officer for considering the claim of exemption u/s. 10(23C)(vi) of the Act, as the assessee is holding the exemption certificate. 4. On the other hand, ld. DR has relied upon the orders of the authorities below. 5. Having considered the rival submissions and going through the impugned orders of the Assessing Officer as well as CIT(A), we note that the Assessing Officer while passing the order u/s. 154 dated 22.05.2018, has accepted the fact that the assessee is registered u/s. 12A of the Act, but has raised the objection that the 5 assessee should have filed Form No. 10 as per provisions of the Act and Rules made in this regard. Assessing Officer has particularly raised this issue that the Form should have been filed electronically. Accordingly, the Assessing Officer denied the deemed application of income of Rs.12,15,956/- for want of any supporting evidence. The CIT(A) has also dismissed the appeal of the assessee on technical ground that the Form-10 was submitted by the assessee to a wrong authority than the concerned Assessing Officer. Neither the Assessing Officer nor CIT(A) has disputed the fact that the assessee has sent the form-10 vide speed post dated 30.03.2016 which is within the limitation period as prescribed by the Rules. Further the Assessing Officer as well as the CIT(A) has not considered the claim of the assessee u/s. 10(23C)(vi) of the Act. Accordingly, in the facts and circumstances of the case and in the interest of justice, the matter is set aside to the record of the Assessing Officer for deciding the issue of exemption u/s. 10(23C)(vi) after giving an opportunity of hearing to the assessee. 6. In the result the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 24 th day of November, 2021 after conclusion of virtual hearing. Sd/- Sd/- (R.K. PANDA) (V.P. RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 24/11/2021 ‘aks’