Gurudwara Shri Guru Singh Sabha, New Delhi V. ITO, New Delhi

ITA 19/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4265 (ITAT-DELHI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Assessee Lawyers: GURDEEP SINGH
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 12A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 19/DEL/2011 ASSESSMENT YEAR: 2005-06 GURUDWARA SHRI GURU SINGH SABHA VS. INCOME TAX OFFI CER, C/O S. GLURUDEEP SINGH, WARD 25(4), F-112A, GTB ENCLAVE, NEW DELHI. NEW DELHI. AABTG1456B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. GURDEEP SINGH, ADV. RESPONDENT BY : SMT. MONA MOHANTY, SR. DR ORDER PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A) DATED 27 TH OCTOBER, 2010 FOR A.Y. 2005-06. GROUNDS OF APPEAL READ AS UNDER: - A) BECAUSE THE LD. AO ERRED IN LAW IN PASSING EXPAR TE ORDER U/S 144 OF THE INCOME TAX WITHOUT AFFORDING ANY OPPORTUNITY TO THE APPELLANT AND THE APPELLANT WAS UNAWARE OF ANY OF T HE PROCEEDINGS GOING ON AGAINST HIM IN THE DEPARTMENT. B) BECAUSE THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E NOTICE OF HEARING ISSUED BY THE LD. AO U/S 143(1) OF THE INCO ME TAX ACT FIXING ON 10.12.2007 WAS NOT SERVED/RECEIVED TO THE APPELLANT. C) BECAUSE THE LD. CIT(A) FAILED TO APPRECIATE THAT TH E APPELLANT IS A GURUDWARA A CHARITABLE INSTITUTION AND THE RECEIPTS DURING THE YEAR COMPRISES IN THE NATURE OF CORPUS FUNDS RECEIV ED. ITA NO. 19/D/11 2 D) BECAUSE THE LD. CIT(A) ERRED IN LAW IN REJECTING TH E APPEAL WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE APPELLANT I N THIS REGARD. E) BECAUSE THE LD. CIT(A) ERRED FURTHER IN OBSERVING T HE CONTRADICTORY ORDER SHEET ON DATED 25.10.10 SAYING NONE ATTENDED. HOWEVER, ON ENQUIRY S. PARMINDER SINGH OB EROI HAS STATED THAT GIVEN THE FACTS OF THE CASE NO SUBMISSI ONS ARE TO BE MADE. IT IS DENIED THAT S. PARVINDER SINGH OBEROI HAS EVE R STATED THAT GIVEN THE FACTS OF THE CASE NO SUBMISSIONS ARE TO B E MADE. F) BECAUSE THE LD. CIT FAILED TO APPRECIATE THAT TH E ORDER PASSED BY THE LD. CO ARE NOT LIABLE TO BE UPHELD BECAUSE OF F RAMING OF ASSESSMENT OF CHARITABLE INSTITUTE IN THE INDIVIDUA L STATUS. G) BECAUSE THE LD. CIT(A) FAILED TO PASS THE APPEAL OR DER IN CONFORMITY WITH THE ENTRY ON THE ORDER SHEET. THER EFORE, THE PROCEEDINGS BEFORE THE CIT(A) ARE ILLEGAL AND ARBIT RARILY. H) BECAUSE THE LD. CIT(A) FAILED TO AFFORD REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT TO EXPL AIN THE SOURCE OF DEPOSIT OF RS. 2009820/- IN THE BANK ACCOUNT OF THE INSTITUTION. I) THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR DELET E ANY OF THE ABOVE GROUNDS OF APPEAL. 2. THE ASSESSEE IS A CHARITABLE INSTITUTION IT HAS BEEN ASSESSED FOR THE RELEVANT ASSESSMENT YEAR BY THE AO VIDE ORDER D ATED 27.12.07 PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (ACT) ON ACCOUN T OF FAILURE OF THE ASSESSEE TO ATTEND THE FIXED DATE OF HEARING. IN A BSENCE OF RETURN OF INCOME AND ON THE BASIS OF AIR INFORMATION RECEIVED FROM CIT(CIB-DELHI) VIDE REFERENCE NO. CIT(CIB/DEL/GSL13511) FOR TRANSA CTION OF RS. 20,09,820/-, THE SAID AMOUNT WAS CONSIDERED TO BE U NEXPLAINED AND ADDED TO THE INCOME OF THE ASSESSEE AND IN THIS MAN NER THE ASSESSEE HAS BEEN ASSESSED AT AN INCOME OF RS. 20,09,820/- BY WA Y OF AN EX-PARTE ITA NO. 19/D/11 3 ASSESSMENT ORDER. THE APPEAL WAS FILED BEFORE CIT( A) WHO HAS TABULATED THE VARIOUS OPPORTUNITY GRANTED TO THE ASSESSEE AND HAS COME TO A CONCLUSION THAT THE APPEAL FILED BY THE ASSESSEE WA S REQUIRED TO BE DISPOSED OFF EX-PARTE. BEFORE CIT(A) THE REPRESENT ATIVE OF THE ASSESSEE HAD STATED THAT THE ASSESSEE WAS IN THE PROCESS OF FILING APPLICATION FOR CONDONATION OF DELAY U/S 119 OF THE ACT AND ALSO RE QUESTING FOR REGISTRATION OF TRUST U/S 12A. FROM SUCH SUBMISSION LD. CIT(A) HAS OBSERVED THAT THE INSTITUTION IS NOT REGISTERED U/S 12A. HE FURTHER OBSERVED THAT NO EVIDENCE HAS BEEN FILED BY THE ASSESSEE TO SHOW THAT ANY APP LICATION FOR CONDONATION OF DELAY U/S 119 WAS FILED OR ANY APPLI CATION FOR REGISTRATION U/S 12A WAS FILED. THEREFORE, HE HAS UPHELD THE AD DITION WHICH WAS MADE AS UNEXPLAINED DEPOSITS OF RS. 20,09,820/-. THE ASS ESSEE IS AGGRIEVED AND HENCE HAS RAISED AFOREMENTIONED GROUNDS OF APPE AL. 3. BEFORE US, REFERRING TO THE STATEMENT OF FACTS, IT WAS THE CASE OF LD. AR THAT ASSESSEE WAS NOT AT ALL AWARE OF ASSESSMENT PROCEEDINGS STARTED AGAINST THE ASSESSEE. IT ONLY CAME TO THE NOTICE O F ASSESSEE UPON RECEIVING NOTICES FROM AO WITH REGARD TO LEVY OF PE NALTIES. IT WAS SUBMITTED THAT AO HAS WRONGLY PRESUMED THE SERVICE OF NOTICE AS THE SAME WAS NEVER SERVED UPON ASSESSEE. THUS, IT WAS PLEADED THAT THE FRAMING OF ASSESSMENT IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. SO AS IT RELATES TO FAILURE OF THE ASSESSEE TO REPRESENT BEF ORE CIT(A), REFERRING TO PARA 7 OF STATEMENT OF FACTS FILED ALONG WITH THIS APPEAL, IT WAS SUBMITTED THAT THE APPEAL EARLIER WAS WITH CIT(A)-XXIV AND IT WAS TRANSFERRED TO CIT(A)-VIII AND A FRESH NOTICE WAS ISSUED ON 13 TH SEPTEMBER, 2010 AT THE ITA NO. 19/D/11 4 ADDRESS 17-A/55, WEA, KAROL BAGH, NEW DELHI FIXING THE DATE OF HEARING AS 22 ND OCTOBER, 2010. THE FINAL OPPORTUNITY NOTICE SENT BY CIT(A) ON 30 TH SEPTEMBER, 2010 FIXING THE DATE OF HEARING FOR 22 ND OCTOBER, 2010 WAS SENT TO THE ADDRESS OF THE COUNCIL I.E. GURUDWARA SHRI SINGH SABHA C/O H.G. BAWEJA, ADVOCATE, 17-A/55, TRIVENI PLAZA, WEA, KAROL BAGH, NEW DELHI THROUGH SPEED POST WHICH WAS RETURNED BACK ON 4 TH OCTOBER, 2010 BY THE POST OFFICE WITH THE REMARKS RETURNED NO SU CH M/S IN 17-A/55, WEA KAROL BAGH, NEW DELHI. ON 22 ND OCTOBER, 2010 SHRI PARMINDER SINGH OBEROI, CA WAS INFORMED BY TELEPHONE AND HE APPEARE D AND SOUGHT ADJOURNMENT FOR 25 TH OCTOBER, 2010. THUS, IT WAS SUBMITTED THAT APPEA L ORDER HAS BEEN FRAMED EX-PARTE ON FILMSY AND UNTANE ABLE GROUND. REFERRING TO THESE CIRCUMSTANCES, IT WAS PLEADED BY LD. AR THAT IT WILL SERVE THE INTEREST OF JUSTICE, IF THE MATTER IS RES TORED BACK TO THE FILE OF AO WITH A DIRECTION TO FRAME DENOVO ASSESSMENT. HE SU BMITTED THAT ASSESSEE WILL EXTEND FULL COOPERATION DURING THE COURSE OF A SSESSMENT PROCEEDING, IF THE MATTER IS RESTORED BACK TO THE FILE OF AO. 4. ON THE OTHER HAND, REFERRING TO THE FAILURE OF T HE ASSESSEE TO APPEAR ON VARIOUS DATES BEFORE AO AND CIT(A), IT WAS PLEAD ED BY LD. DR THAT THE ADDITION HAS RIGHTLY BEEN UPHELD BY CIT(A) AND HIS ORDER SHOULD BE UPHELD AND THE APPEAL FILED BY THE ASSESSEE SHOULD BE DISM ISSED. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE ASSESSEE HAS BEEN A BLE TO SHOW THAT ON THE DATES WHEN AO FRAMED THE ASSESSMENT ORDER AND O N THE DATE WHEN ITA NO. 19/D/11 5 CIT(A) DECIDED THE APPEAL OF THE ASSESSEE, NO NOTIC E WAS PROPERLY SERVED UPON ASSESSEE. IN FACT, IN THE STATEMENT OF FACTS, IT HAS BEEN MENTIONED THAT ON 22 ND OCTOBER, 2010 SHRI PARMINDER SINGH OBEROI, CA APPE ARED BEFORE CIT(A) AND HAD SOUGHT ADJOURNMENT FOR 25 TH OCTOBER, 2010. KEEPING IN VIEW THE ENTIRETY OF THESE FACTS, WE ARE OF THE OPINION THAT IT IS A CASE OF LACK OF OPPORTUNITY PROVIDED TO THE ASSESSE E. THEREFORE, WE ARE OF THE OPINION THAT IT WILL SERVE THE INTEREST OF JUST ICE, IF THE MATTER IS RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO FRAME DE NOVO ASSESSMENT AS PER PROVISIONS OF LAW AFTER PROVIDING THE ASSESSEE A RE ASONABLE OPPORTUNITY OF HEARING. LD. COUNSEL OF THE ASSESSEE HAS ASSURED U S FOR EXTENSION OF COOPERATION DURING THE COURSE OF RESTORED PROCEEDIN GS BEFORE AO. THEREFORE, WE RESTORE THIS APPEAL TO THE FILE OF AO WITH A DIRECTION TO FRAME DENOVO ASSESSMENT AS PER PROVISIONS OF LAW AFTER GI VING ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. TO AVOID ANY FU RTHER DELAY IN THE MATTER WE HAVE DIRECTED THE COUNSEL OF THE ASSESSEE TO APPEAR BEFORE AO ON 28.6.11 TO REPRESENT THE CASE OF THE ASSESSEE. THE SAID DATE WAS DULY TAKEN NOTE OF BY LD. AR. THE ORDER WAS PRONOUNCED IN THE OPEN COURT. IN THIS MANNER THE APPEAL FILED BY THE ASSESSEE WAS AL LOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 4.05.11 SD/- SD/- (K.D. RANJAN) (I.P. BANSAL) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 4.5.11 *KAVITA CHOPRA ITA NO. 19/D/11 6 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR