Nutan Maharashtra Vidya Prasarak Mandal, Pune V. Income-tax Officer,

ITA 2320/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9268 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-02-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI , AM . / ITA NO. 2 3 2 0 /P U N/201 6 / ASSESSMENT YEAR : 20 09 - 1 0 NUTAN MAHARASHTRA VIDYA PRASARAK MANDAL, C/O SHRI P.G. KETKAR, PRIYADARSHAN, S.NO.23B/11, ERANDWANA, PUNE 411004 . / APPELLANT PAN: AAATN7199R VS. THE INCOME TAX OFFICER, WARD 10(1), PUNE . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPONDENT BY : S HRI ACHAL SHARMA / DATE OF HEARING : 2 1 . 0 2 .201 8 / DATE OF PRONOUNCEMENT: 27 . 0 2 .201 8 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - 9 , PUNE , DATED 25 . 0 7 .20 1 6 RELATING TO ASSESSMENT YEAR 20 09 - 1 0 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . ITA NO. 2 3 2 0 /P U N/20 1 6 NUTAN MAH. VIDYA PRASARAK MANDAL 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN REJECTING THE APPELLANT'S APPEAL WITH THE PRESUMPTION THAT APPELLANT DO NOT WANT TO PRESS THE APPEAL AND THEREBY FURTHER ERRED IN DISMISSING ALL THE GROUNDS AS TREATING THE SAME AS NOT PRESSED, YOUR APPELLANT PRAYS FOR A N OPPORTUNITY OF HEARING. 2. ON THE FACTS AND IN CIRCUMSTANC ES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN DENYING THE EXEMPTION U/S 10(23C)(IIIAB) OF THE INCOME TAX ACT, 1961 BY DISREGARDING APPELLANT'S CONTENTION. 3. WITHOUT PREJUDICE TO GROUND NO.2, LEARNED ASSESSING OFFICER ERRED IN REJECTING T HE APPELLANT'S CLAIM TO EXCLUDE THE NOTIONAL FIGURE OF RS.15,00,000/ - AS RENT PAID AND RENT RECEIVED. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN EXCLUDING THE INTEREST PORTION OF EARLIER YEARS FROM THE FIGURE OF RS.55,50,526/ - , YOUR APPELLANT PRAYS FOR APPROPRIATE RELIEF. 5. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAVE ERRED IN MAKING THE DISALLOWANCE OF RS.6,03,257/ - BY INVOKING THE PROVISIONS OF SECTION 40(A)(I A) BY REJECTING APPELLANT'S CONTENTION. 3. THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEAL BUT THE PRELIMINARY ISSUE WHICH HAS BEEN RAISED BEFORE US IS AGAINST THE ORDER OF CIT(A) IN NOT ALLOWING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. THE LE ARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ASSESSEE WAS AN INSTITUTION WHICH WAS RUNNING SCHOOLS AND COLLEGES AND MOST OF THEM ARE GOVERNMENT AIDED ESTABLISHMENTS. THE INCOME OF TRUST WAS DECLARED AT NIL. HOWEVER, THE ASSESSMEN T WAS COMPLETED BY MAKING DISALLOWANCE UNDER SECTION 10(23C)(IIIAB) OF THE ACT AND ADDITION ON ACCOUNT OF TDS. HE REFERRED TO THE ORDER OF CIT(A) AND POINTED OUT THAT THE SAME TALKS OF THREE NOTICES OF HEARING TO THE ASSESSEE WHICH WERE NOT RECEIVED BY IT AND ITA NO. 2 3 2 0 /P U N/20 1 6 NUTAN MAH. VIDYA PRASARAK MANDAL 3 HENCE, THE DEFAULT. HE MADE A PRAYER THAT NO PROPER OPPORTUNITY OF HEARING WAS ALLOWED TO THE ASSESSEE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT THREE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE, W HO FAILED TO COMPLY WITH ANY OF THE SAME BEFORE CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRINCIPLES OF NATURAL JUSTICE REQUIRE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE COMPLETING ASSESSMENT IN THE HANDS O F ASSESSEE. THE CASE BEFORE US IS OF APPELLATE PROCEEDINGS WHERE THE CIT(A) HAD ISSUED THREE NOTICES OF HEARING BUT THE ASSESSEE FAILED TO APPEAR. THE CASE OF ASSESSEE BEFORE US IS THAT IT WAS PREVENTED BY SUFFICIENT CAUSE FOR NON - APPEARANCE BEFORE THE C IT(A). THE CASE OF REVENUE ON THE OTHER HAND, IS THAT IN VIEW OF NON - COOPERATION OF ASSESSEE BEFORE CIT(A), THERE WAS NO ALTERNATIVE BUT TO DECIDE THE APPEAL EXPARTE. THERE IS MERIT IN THE PLEA OF ASSESSEE. THE CASE BEFORE US IS THAT OF TRUST WHICH IS R UNNING EDUCATIONAL INSTITUTION. THE APPEAL OF ASSESSEE WAS DECIDED BY CIT(A) UPHOLDING THE ORDER OF ASSESSING OFFICER SINCE THE ASSESSEE HAD NOT RESPONDED TO ANY OF THE NOTICES ISSUED. THE CIT(A) HAS FAILED TO GO INTO MERITS OF ADDITION MADE BY THE ASSES SING OFFICER. IN SUCH CIRCUMSTANCES, THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. HENCE, THE MATTER IS SET ASIDE TO THE FILE OF CIT(A) TO DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . THE ASSESSEE IS ALSO DIRECTED TO COOPERATE AND APPEAR BEFORE THE CIT(A) AND FILE NECESSARY INFORMATION IN THIS REGARD. THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ITA NO. 2 3 2 0 /P U N/20 1 6 NUTAN MAH. VIDYA PRASARAK MANDAL 4 ON MERITS BECOME ACADEMIC IN VIEW OF OUR DECISION OF RESTOR ING THE MATTER BACK TO THE FILE OF CIT( A) . 7 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 27 TH DAY OF FEBRUARY , 201 8 . SD/ - SD/ - ( ANIL CHATURVEDI ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 27 TH FEBRUARY , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 9 , PUNE ; 4. THE PR. CIT - 5 , PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / B Y ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE