Silicon City Education trust , Bangalore V. Income Tax Officer Ward- 3, Bangalore

ITA 1951/BANG/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5671 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1951 / BANG/201 7 ASSESSMENT YEAR : 20 1 2 - 13 M/S. SILICON CITY EDUCATION TRUST, NO. 155/4B, KUMAR NURSERY, NEW BANK COLONY, KONANAKUNTE, BANGALORE 560 062. PAN: AAFTS 4008P VS. THE INCOME TAX OFFICER (EXEMPTIONS), WARD 3, BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRIDHAR, CA RESPONDENT BY : SMT. SWAPNA DAS, JCIT (DR) DATE OF HEARING : 16 .01.2018 DATE OF PRONOUNCEMENT : 19 .0 1 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT(A) 14, LTU, BANGALORE DATED 31.07.2017 FOR ASSESSMENT YEAR 2012 -13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE CIT(A)-14 IS OPPOSED TO THE LAW AND FACTS OF THE CASE. 2. THE CIT(A) ERRED IN CONCLUDING THAT THE APPELLAN T HAD ACCEPTED THE ADDITION BEFORE ADDL. CIT WHEREAS THE APPELLANT HAD ACCEPTED ONLY THE BUILDING FUND RECEIVED OF RS.24,48,000/- WHICH WAS OMITTED TO TAKEN INTO GROSS RECEIPTS AND NOT THE OTHER ADDITIO NS MADE IN THE ORDER. 3. WITHOUT PREJUDICE THE APPELLANT HAD AGREED FOR T HE ADDITION BEFORE THE AO ONLY IN RESPECT BUILDING FUND FOR CONSIDERAT ION TO GROSS RECEIPTS WHICH IS ALSO FAILED TO CONSIDER THE OTHER LEGAL GROUNDS FOR WHICH THE APPEAL MAY KINDLY BE SET ASIDE FOR FRESH CONSIDERATION. 4. THE CIT(A) FAILED TO GIVE A FINDING THAT THE APP ELLANT HAS NOT ITA NO.1951/BANG/2017 PAGE 2 OF 4 ACCEPTED THE ADDITION IN THE ASSESSMENT ORDER EXCEP T FOR BUILDING FUND OF RS.24,48,000/- FOR THE WHICH THE APPELLANT REPLI ED LETTER VIDE DT. 25.02.2015 WHICH THE AO FAILED TO CONSIDER REPLY DT .25.03.2015 AND ALSO THE CONTENTION IN THE GROUNDS OF APPEAL AND IN THE WRITTEN SUBMISSION FILED ON 17.04.2017 EVEN THOUGH REFERRIN G THE SAME IN THE APPELLATE ORDER. 5. THE CIT(A) ERRED IN NOT CONSIDERING THE VARIOUS DECISIONS QUOTED IN THE GROUNDS OF APPEAL AS WELL AS IN WRITTEN SUBMISS ION INCLUDING THE JURISDICTIONAL HIGH COURT DECISION SIMPLY REJECTING FOR HAVING ACCEPTED THE ADDITION BEFORE THE ASSESSING OFFICER WHICH IS AGAINST THE BOARD CIRCULAR IN NO,14/(XL-35), DT. 11.04.1955. 6. THE CIT(A) COULD HAVE BEEN ANOTHER OPPORTUNITY S INCE THERE WAS A CHANGE IN AUTHORIZED REPRESENTATIVE WHO'S ADDRESS W AS ON FILE THE NOTICE OF HEARING HAS BEEN SENT TO THE EARLIER REPR ESENTATIVE WHO HAS FILED A LETTER OF ADJOURNMENT DT.26.07.2017 WHICH W AS RECEIVED BY THE OFFICE OF CIT(A) ON 28.07.2017, THE CIT(A) HAVE PAS S THE ORDER ON 31.07.2017. 7. FOR THESE AND OTHER GROUND THAT MAY BE URGED THE APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY KINDLY BE SET ASIDE TO CI T(A) FOR GIVING ONE MORE OPPORTUNITY IN THE INTEREST OF JUSTICE AND EQU ITY. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE ORDER PASSED BY LD. CIT (A) IS EX-PARTE. HE DRAWN OUR ATTENTION TO PARA NO. 3 OF THE ORDER OF CIT (A) AND POINTED OUT THAT IN THIS PARA, IT IS NO TED BY CIT (A) THAT WRITTEN SUBMISSIONS WERE FILED BY ASSESSEE ON 17.04.2017 AN D ALTHOUGH HE HAS STATED IN THE SAME PARA THAT THE APPEAL IS PROPOSED TO BE DISPOSED OF BASED ON SUCH WRITTEN SUBMISSIONS AVAILABLE ON RECORD BUT IN FACT , THE SAME WERE NOT CONSIDERED. HE POINTED OUT THAT THE RELEVANT SUBMI SSIONS FILED BEFORE CIT (A) ON 17.04.2017ARE AVAILABLE ON PAGES 49 TO 57 OF PAP ER BOOK AND THE SAME WERE NOT CONSIDERED IN THE ORDER OF CIT (A). THERE FORE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECI SION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD . DR OF REVENUE SUBMITTED THAT THE WRITTEN SUBMISSIONS ARE DULY CONSIDERED BY CIT (A) AS STATED BY HIM IN PARA NO. 3 OF THE ORDER OF CIT (A) AND THEREFORE, T HE ORDER OF CIT (A) SHOULD BE CONFIRMED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN PARA NO. 3 OF HIS ORDER, IT IS NOTED BY CIT (A) THAT THE ASSESSEE HAS FILED WRI TTEN SUBMISSIONS ON ITA NO.1951/BANG/2017 PAGE 3 OF 4 17.04.2017 AND THE APPEAL WILL BE DECIDED BY CONSID ERING THE SAME. THE APPEAL WAS DECIDED BY CIT (A) AS PER PARA NO. 4 BUT IN THIS PARA, THERE IS NO REFERENCE TO WRITTEN SUBMISSIONS DATED 17.04.2017 W HICH ARE AVAILABLE ON PAGES 49 TO 57 OF PAPER BOOK. IN THE WRITTEN SUBMI SSIONS FILED BEFORE CIT (A) ON DATED 17.04.2017, THIS CONTENTION WAS ALSO RAISE D THAT AN AMOUNT OF RS. 24.48 LAKHS WAS RECEIVED TOWARDS CORPUS FUND (BUILD ING FUND) BUT THE AO HAS CONSIDERED THE SAME AS FEES COLLECTION AND ADDED TH E SAME TO THE INCOME. IT IS ALSO SUBMITTED IN THE WRITTEN SUBMISSIONS THAT T HE FUNDS WERE COLLECTED BY WAY OF BUILDING FUNDS AND HAVE BEEN UTILIZED FOR TH E PURPOSE OF CONSTRUCTION OF THE BUILDING. THERE IS NO FINDING GIVEN BY CIT (A) IN THE IMPUGNED ORDER REGARDING THESE CONTENTIONS RAISED BEFORE HIM AND H ENCE, I FEEL IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER. ACCORDINGLY I SET ASI DE THE ORDER OF CIT (A) AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF CIT ( A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES.IN VIEW OF THIS DECISION; I DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 19 TH JANUARY, 2018. /MS/ ITA NO.1951/BANG/2017 PAGE 4 OF 4 COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.