Sri. Mallikarjun Vidya Vardhak Sangha, Bijapur V. ACIT, Bijapur

ITA 181/BANG/2010

• Counselvise Citation: 18121114 RSA 2010
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEERA SRIVATSAV JT
• Assessee Lawyers: ASHOK KULKARNI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO. 181/BANG/2010 ASSESSMENT YEAR : 2006-07 SRI MALLIKARJUN VIDYA VARDHAK SANGH, C/O. R.K. MEMORIAL AYURVEDIC COLLEGE, BADI KAMAN ROAD, BIJAPUR. PAN : AAGTS 4396D VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, BIJAPUR. APPELLANT RESPONDENT APPELLANT BY : SHRI ASHOK KULKARNI, ADVOCATE RESPONDENT BY : SMT. MEERA SRIVATSAV, JT.CIT(DR) DATE OF HEARING : 03.01.2012 DATE OF PRONOUNCEMENT : 03.01.2012 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26.11.2009 OF THE CIT(APPEALS), BELGAUM. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: ITA NO.181/BANG/10 PAGE 2 OF 4 (1) THE HON'BLE COMMISSIONER OF INCOMETAX, (APPEA LS) IS WRONG IN DISMISSING THE APPEAL OF THE APPELLANT, WI THOUT CONSIDERING THE FACTUAL POSITION OF THE APPELLANT. (2) THE HON'BLE CIT(A) OUGHT TO HAVE TAKEN INTO CONSIDERATION THE FACT THAT DUE TO PROLONGED ILL-HE ALTH THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT WAS IN A POSITION TO APPEAR BEFORE HIM. (3) THE HON'BLE CIT(A) OUGHT TO HAVE TAKEN INTO CONSIDERATION THE WRITTEN SUBMISSION SENT BY THE AP PELLANT BEFORE PASSING THE EX-PARTY ORDER WITHOUT GOING INTO THE M ERITS OF THE CASE. (4) THE HONBLE CIT(A) OUGHT TO HAVE NOTED THE FACT THA T THE APPELLANT IS A PUBLIC TRUST RUNNING EDUCATIONAL INS TITUTIONS AND ITS WHOLE FUNDS ARE BEING SPENT ON EDUCATIONAL ACTIVITI ES. (5) THE APPELLANT SUBMITS AND REQUESTS ONE MORE OPPORTU NITY BE GIVEN TO THE APPELLANT. (6) ALTERNATIVELY, THE APPELLANT SUBMITS THAT IT BE ASS ESSED AS PUBLIC TRUST AND BE DEEMED TO HAVE BEEN GRANTED REG ISTRATION U/S 12A. (7) THE APPELLANT BEGS LEAVE TO ADD. ALTER OR AMEND ANY OF THE FOREGOING GROUNDS OF APPEAL THAT MAY BE URGED AT HE ARING STAGE. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE TRUST FILED ITS RETURN OF INCOME ALONG WITH AUDIT REPORT IN FORM 10 B ON 19.2.2007 DECLARING NIL INCOME IN THE STATUS OF AOP. THE SAI D RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME-TAX ACT, 1961 [HEREINAFTE R REFERRED TO AS THE ACT IN SHORT] ON 15.3.2007. LATER ON THE CASE WAS SEL ECTED FOR SCRUTINY. THE AO FRAMED THE ASSESSMENT U/S. 143(3) OF THE ACT AT AN INCOME OF RS.37,57,958. 4. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L TO THE LD. CIT(A), WHO DISMISSED THE APPEAL IN LIMINE FOR WANT OF PROSECUTION. NOW THE ASSESSEE IS IN APPEAL. ITA NO.181/BANG/10 PAGE 3 OF 4 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(APPEALS) WHILE DISMISSING THE APPEAL EX PARTE , DID NOT APPRECIATE THIS FACT THAT DUE TO PROLONGED ILL-HEALTH, THE AR OF THE ASSESSEE WAS NO T IN A POSITION TO APPEAR BEFORE HIM. HE FURTHER SUBMITTED THAT A DUE AND PR OPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE AND THAT WITHOUT DISCUSSING THE ISSUES ON MERIT, THE LD. CIT(A) WAS NOT JUSTIFIED I N DISMISSING THE APPEAL OF THE ASSESSEE EX PARTE . 6. IN HER RIVAL SUBMISSIONS, THE LD. DR SUPPORTED T HE ORDER OF THE LD. CIT(APPEALS) AND SUBMITTED THAT CONSIDERING THE NON -COOPERATIVE ATTITUDE OF THE ASSESSEE, THE LD. CIT(A) WAS JUSTIFIED IN DI SMISSING THE APPEAL FOR WANT OF PROSECUTION. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE IT IS NOTICED THAT THE LD. CIT(A) ISSUED FIVE NOTICES OF HEARING TO THE ASSESSEE, THE FIRST NOTICE DATED 27.8.09 FIXING THE DATE OF HEARING ON 15.9.09 AND THE LAST NOTICE ISSUED WAS DATED 12.11. 2009 AND THE DATE OF HEARING WAS GIVEN AT 19.11.09. IN OTHER WORDS, WIT HIN A SPAN OF LESS THAN THREE MONTHS THE LD. CIT(A) ISSUED FIVE NOTICES, BU T THE TIME GIVEN WAS 7 DAYS IN THE LAST AND LAST BUT ONE NOTICE DATED 12.1 1.09 AND 30.10.09 RESPECTIVELY. IT IS ALSO NOTICED THAT THE ASSESSEE IS STAYING AT BIJAPUR WHILE THE OFFICE OF THE CIT(APPEALS) WAS SITUATED AT BELG AUM I.E., THE ASSESSEE AND THE CIT(A) WERE PLACED IN DIFFERENT STATIONS, N OT ON THE SAME STATION. MORE OVER, IT IS NOT CLEAR AS TO WHETHER THE ASSESS EE RECEIVED ANY NOTICE OF HEARING BEFORE THE APPEAL WAS DECIDED BY THE LD. CI T(A) ON 26.11.09. ONE OF THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESS EE IN THE GROUNDS OF ITA NO.181/BANG/10 PAGE 4 OF 4 APPEAL AND ALSO BEFORE US WAS THAT THE AR OF THE AS SESSEE WAS SICK DUE TO PROLONGED ILL-HEALTH AND WAS NOT IN A POSITION TO A PPEAR BEFORE THE LD. CIT(A). IN OUR OPINION, EVEN IF THE LD. CIT(A) WAN TED TO DISPOSE OF THE APPEAL OF THE ASSESSEE, HE SHOULD HAVE DISPOSED OF THE SAME ON MERITS, BUT IT IS NOT DONE. WE THEREFORE DEEM IT APPROPRIA TE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) AND T HE CASE IS REMANDED BACK TO HIS FILE TO BE ADJUDICATED AFRESH IN ACCORD ANCE WITH LAW ON MERITS, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED NOT TO SE EK UNREASONABLE ADJOURNMENTS AND COOPERATE. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 3RD DAY OF J ANUARY, 2012. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 3 RD JANUARY, 2012. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.