Kailash Foundation, V. CIT,

ITA 2027/DEL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3537 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 28-07-2010
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: UMESH SHARMA
• Keywords: Set aside
• Section: 80G; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.G. BANSAL, ACCOUNTANT MEMBER I.T.A NO. 2027/DEL/08 ASSTT. YEAR 2008-09 KAILASH FOUNDATION VS. COMMISSIONER OF INCOME TAX L-9/21,DLG CITY. PHASE-II, FARIDABAD. GURGAON 122002. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI UMESH SHARMA, CA RESPONDENT BY: SHRI N.K. CHAND, DR ORDER PER RAJPAL YADAV, JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX DATED 22 ND APRIL, 2008 VIDE WHICH HE HAS REJECTED THE APPLICATION OF ASSESSEE FOR GRANT OF R EGISTRATION U/S 80G. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF ITAT RULES. THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN GROUND NO. 1 ASSESSEE HAS PLEADED THAT C OMMISSIONER HAS DECIDED ITS APPLICATION FOR GRANT OF REGISTRATION U /S 80G WITHOUT AFFORDING DUE OPPORTUNITY OF HEARING TO IT. ITA NO. 2027/DEL/08 ASSTT. YEAR 2008-09 2 2. LD. COUNSEL FOR THE ASSESSEE WHILE APPRISING US WITH THE FACTS AND CIRCUMSTANCES POINTED OUT THAT ASSESSEE TRUST CAME INTO EXISTENCE ON 31 ST AUGUST, 2007 WHEN THE TRUST DEED WAS EXECUTED. IT HAS APPLIED FOR REGISTRATION U/S 12A ON 3 RD OCTOBER, 2007. THE REGISTRATION HAS BEEN GRANTED TO IT ON 2 ND APRIL, 2008. IT HAS APPLIED FOR REGISTRATION U/S 8 0G ON 8.10.2007. LD. COMMISSIONER HAD FIXED THE APPLICATI ON FOR HEARING. HOWEVER ASSESSEE SOUGHT THE ADJOURNMENT. THE CASE W AS FIXED FOR HEARING AT THE CAMP HELD BY THE LD. COMMISSIONER I N INCOME TAX OFFICE GURGAON ON 16 TH APRIL, 2008. HOWEVER THE ASSESSEE AGAIN SOUGHT ADJOURNMENT BUT LD. COMMISSIONER PROCEED TO ADJUDIC ATE THE APPLICATION OF THE ASSESSEE. HE FURTHER CONTENDED THAT IN PARAG RAPH NO. 4 LD. COMMISSIONER HAS OBSERVED THAT NEITHER ANY AUTHORIZ ED REPRESENTATIVE NOR ANY ONE OF THE TWO TRUSTEE APPEARED BEFORE HIM ON 16 TH APRIL, 2008 WHEN THE LAST HEARING WAS FIXED. ON ACCOUNT OF NON APPEARANCE OF ANY PERSON ON BEHALF OF THE ASSESSEE SUFFICIENT INFORMA TION COULD NOT BE PLACED BEFORE THE LD. COMMISSIONER AS PER HIS OBSER VATION IN PARAGRAPH 4, WHICH LED TO DISMISSAL OF ASSESSEES APPLICATION . HE POINTED OUT THAT SUFFICIENT TIME WAS NOT GRANTED TO THE ASSESSEE TO SUBMIT ALL THESE DETAILS AND PUT ITS CASE EFFECTIVELY BEFORE THE LD. COMMISSIONER. HE PRAYED THAT ORDER OF THE LD. COMMISSIONER BE SET AS IDE AND ISSUE BE RESTORED BEFORE HIM FOR FRESH ADJUDICATION. LD. DR ON THE OTHER HAND ITA NO. 2027/DEL/08 ASSTT. YEAR 2008-09 3 RELIED UPON THE ORDER OF THE LD. COMMISSIONER AND C ONTENDED THAT IN PARAGRAPH 2 LD. COMMISSIONER HAS DULY RECORDED DIFF ERENT STAGES OF THE PROCEEDING TAKEN PLACE IN THIS CASE. AS PER THE OBS ERVATION OF THE LD. COMMISSIONER AVAILABLE IN PARAGRAPH 2 SUFFICIENT TI ME AND OPPORTUNITY OF HEARING WAS GRANTED TO THE ASSESSEE. BUT IT FAILED TO SUBMIT THE REQUISITE DETAILS. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. NO DOUBT IN PARAGRAPH NO. 2 L D. COMMISSIONER HAS DISCUSSED THE DETAILS OF PROCEEDING TAKEN PLACE IN PROCESSING THE APPLICATION OF ASSESSEE. ON THE REQUEST OF ASSESSEE HE HAS GRANTED THE ADJOURNMENT ALSO. BUT IT IS ALSO A FACT THAT CASE O F THE ASSESSEE REMAINED UN-REPRESENTED AS DISCERNABLE IN THE OBSER VATION RECORDED IN PARAGRAPH NO. 4 OF THE IMPUGNED ORDER. ACCORDING TO THE ASSESSEE THE TIME GRANTED ON THE ADJOURNMENT APPLICATION DATED 1 ST APRIL, 2008 WAS NOT SUFFICIENT AND IT COULD NOT EFFECTIVELY PROSEC UTE ITS APPLICATION. THE LD. COMMISSIONER HAD ISSUED A QUESTIONNAIRE ON 31 ST MARCH, 2008. ASSESSEE SOUGHT AN ADJOURNMENT VIDE FAX LETTER DATE D 1 ST APRIL, 2008. IT SOUGHT THE TIME OF 15 DAYS. THE HEARING WAS ADJOURN ED FOR 19 TH APRIL, 2008. HOWEVER ACCORDING TO THE OBSERVATION OF THE L D. COMMISSIONER IT WAS REFIXED ON 16THE APRIL, 2008 AT CAMP OFFICE GUR GAON. THIS DATE WAS COMMUNICATED TO THE ASSESSEE ON TELEPHONE. IT APPEA RS TO US THAT IN THE ITA NO. 2027/DEL/08 ASSTT. YEAR 2008-09 4 CONFUSION OF THIS CHANGE OF DATE THE ASSESSEE COULD NOT PROSECUTE THE PROCEEDING AND THAT LEADS TO PASSING OF AN EX PARTE . WE ARE OF THE OPINION THAT IN ORDER TO MEET WITH THE END OF JUSTI CE IT IS OBLIGATORY ON OUR PART TO SET ASIDE THE ORDER OF LD. COMMISSIONER AND RESTORE THIS ISSUE TO HIS FILE FOR READJUDICATION. IT IS NEEDLESS TO SAY THAT ANY OBSERVATION MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF REVENUE OR WOULD CAUSE ANY PREJUDICE TO THE DEFENCE /EXPLANATION OF THE ASSESS EE ON MERIT. THE ASSESSEE WILL BE AT LIBERTY TO PRODUCE ANY DETAIL I N SUPPORT OF ITS CASE. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JULY, 2010. SD/- [K.G. BANSAL] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER VEENA DATED: 28.7.2010 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGI STRAR, ITAT