Institute of Computer Excellence, SATNA V. Income Tax Officer, SATNA

ITA 2/JAB/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1128 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-01-2014
• Court: TRIBUNAL
• Department Lawyers: V B SARGOR
• Assessee Lawyers: G N PUROHIT
• Keywords: Set aside
• Section: 142(1); 133(6); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 02/JAB/2014 A.Y. : 2008-09 INSTITUTE OF COMPUTER EXCELLENCE, SATNA VS ITO, SATNA APPELLANT RESPONDENT PAN NO. : AADAS0839F APPELLANT BY : SHRI G.N.PUROHIT, SR. ADV. RESPONDENT BY : SHRI V.B.SARGOR, DR DATE OF HEARING : 2 9 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 29 . 0 5 .201 5 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, JABALPUR, DATED 09.09.2013 FOR THE ASS ESSMENT YEAR 2008-09. -: 2: - 2 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ASSESSMENT AS VALID EVEN THOUGH THE ITO SATNA HAS NO JURISDICTION TO FRAME ASSESSMENT OF CHARITABLE INSTITUTE. THE ASSESSMENT SHOULD BE ANNULLED AS ILLEGAL AB INITIO AND WITHOUT JURISDICTION. 2. THAT FRAMING OF ASSESSMENT WITHOUT PROVIDING THE REASONS FOR ISSUANCE OF NOTICE U/S 148 NOTICE IS ILLEGAL AND VOID SHOULD BE CANCELLED. 3. THAT THERE IS NO JUSTIFICATION FOR CONFIRMING THE ADDITION OF RS. 24,41,150/- SAME IS FULLY RECORDED IN THE BOOKS OF ACCOUNT OF SEER SHOULD BE DELETED IN TOTO. 4. WITHOUT PREJUDICE TO THE ABOVE GROUND THE LD. CIT(A ) IS NOT JUSTIFIED IN NOT ALLOWING EXEMPTION U/S 10(23C)(IIIAD) AVAILABLE TO EDUCATIONAL INSTITUTES SHOULD BE ALLOWED. -: 3: - 3 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SOCIETY CALLED SOCIETY FOR EDUCATIONAL EXCELLENCE & RESEA RCH. THE RAJIV GANDHI INSTITUTE OF COMPUTER EXCELLENCE IS BE ING RUN BY THE ABOVE NAMED SOCIETY. THE NOTICE U/S 148 WAS ISS UED ON 29.3.2012 ON THE BASIS OF AIR INFORMATION AVAILABL E ON RECORD THAT THE ASSESSEE HAS MADE INDIVIDUAL TRANSACTION I N CASH BY DEPOSITING THE AMOUNT OF RS. 24,41,150/- DURING THE FINANCIAL YEAR 2007-08 RELEVANT TO ASSESSMENT YEAR 2008-09 WH ICH IS NOT REFLECTED IN THE RETURN FILED FOR THE ASSESSMEN T YEAR 2008- 09. THE ASSESSEE DID NOT COMPLY WITH THE TERMS OF N OTICE U/S 133(6) OF THE INCOME-TAX ACT, 1961, ISSUED ON 17.3. 2009, 5.4.2010, 1.02.2012. NOTICE U/S 142(1) ALONGWITH TH E QUERY LETTER AS PER ANNEXURE WAS ISSUED ON 27.7.2012, FIX ING THE CASE FOR 5.9.2012, BUT NONE ATTENDED BEFORE AO NOR ANY APPLICATION FOR ADJOURNMENT WAS SENT. THE CASE WAS AGAIN FIXED BEFORE THE AO FOR HEARING ON 8.10.2012, BUT T HE ASSESSEE DID NOT ATTEND NOR ANY REPLY WAS SENT. THE AO COMPL ETED THE ASSESSMENT EX PARTE U/S 144 OF THE INCOME-TAX ACT, 1961. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER. THE MATTER CARRIED TO CIT(A), WHO DISMISSED THE APPEAL. -: 4: - 4 5. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE INCORRECT FACTS IN THE ASSESSMENT ORDER WERE NARRAT ED. HE STATED THAT THE CASE WAS FIXED FOR 8.10.2012 AND NO REPLY WAS SENT. THE ASSESSEE FILED A WRITTEN REPLY ON 8.10.20 12 CHALLENGING THE JURISDICTION. THE AO STATED THAT A NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSEE ON 17.10.2012. NO NOTICE WAS RECEIVED BY THE ASSESSEE. HE FURTHER CONTENDED THAT THE INCOME OF THE ASSESSEE SOCIETY IS EXEMPT U/S10(23C) (IIIAD) SINCE IT RUNS AN EDUCATIONAL INSTITUTION AND GROSS ANNUAL RECEIPTS OF SUCH INSTITUTION ARE LESS THAN RS. 1 CR ORE ( RS. 33,05,888/- IN THE PRESENT CASE ). EVEN IF THE AO A DDS RS. 24.41 LACS TO THE INCOME OF THE INSTITUTION, IT WOU LD STILL BE LESS THAN RS. 1 CRORE AND THE ASSESSEE WILL BE STILL ELI GIBILE FOR EXEMPTION U/S 10(23C)(IIIAD). 6. THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THIS CASE IS FIT FOR RESTORA TION. THE AO HAS MADE THE ASSESSMENT IN THE ABSENCE OF ASSESSEE AND WITHOUT HEARING THE ASSESSEE. IN THE INTEREST OF JU STICE AND FAIR -: 5: - 5 PLAY, WE SET ASIDE THE MATTER BACK TO THE FILE OF A O, WHO SHALL DECIDE THE MATTER AFRESH. AN OPPORTUNITY OF BEING H EARD SHALL BE GIVEN TO THE ASSESSEE. THE ASSESSEE SHALL PRODUC E THE NECESSARY DOCUMENTS BEFORE THE AO OR ANY OTHER MATE RIAL REQUIRED BY THE AO. THE ASSESSEE SHALL COOPERATE TO THE AO IN ALL RESPECTS. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 29 TH MAY , 2015. CPU* 156