Addl. CIT, V. Gramodyogik Shikshan Mandal,

ITA 2347/DEL/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3842 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 30-06-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Keywords: Opportunity of being heard
• Section: 143(3); 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT AND SHRI C.L. SETHI, JM I.T. A. NO.2347/DEL OF 2006 ASSESSMENT YEAR: 2002-03 ADDL. CIT, BULANDSHAHR. VS M/S GRAMODYOGIK SHIK SHAN MANDAL 5/491, LAXMI NAGAR, BULANDSHAHR. APPELLANT RESPONDENT APPELLANT BY: SHRI A.K. PANDEY, SR. DR RESPONDENT BY: NONE ORDER PER C.L. SETHI, JM: THE REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER DATED 27.4.2006 OF LEARNED CIT(A) IN THE MATTER OF AN ASSESSMENT MADE U/S 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT) PERTAINING TO THE A SSTT. YEAR 2002-03. 2. GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW IN HOLDING THAT THE 2 ASSESSEE TRUST IS ENTITLED TO EXEMPTION U/S 11(1) O F THE I.T. ACT, 1961IGNORING THE FOLLOWING FACTS: (A) THAT THE ACCOUNTS OF THE TRUST FOR THE PERIOD 1.4.2001 TO 13.7.2001 WERE NOT AVAILABLE FOR EXAMINATION. (B) THAT NO NOTICE U/S 11(2) OF THE ACT WITHIN THE STIPULATED TIME WAS GIVEN TO THE AO FOR ACCUMULATION OF THE SURPLUS AND THE DELAY WAS NOT CONDONED BY THE CIT ALSO. (C ) THAT THE TRUST WAS NOT NOTIFIED U/S 10(23C)(VI ) OF THE ACT BY THE CHIEF COMMISSIONER OF INCOME- TAX. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN LAW IN HOLDING THAT THE INCOME FOR THE PERIOD 1.4.2001 TO 13.7.2001 BE TAKEN AT NI L AS AGAINST RS.43,96,275/- ESTIMATED PROPORTIONATELY BY THE AO IN THE ABSENCE OF BOOKS OF ACCOUNTS. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN LAW IN REDUCING THE DISALLOWANCE OF RS.5 LACS TO 3 LACS UNDER THE VARIOUS HEADS BEING INADMISSIBLE AND UNVOUCHED EXPENSES. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN LAW IN HOLDING THAT NO INTEREST ACCRUED ON THE FDR FOR RS.60 LACS UNDER THE LIEN OF CCS UNIVERSITY, MEERUT AND THE AICTE LUCKNOW FOR AFFILIATION OF THE COURSES OF THE COLLEGE. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF LD. CIT(A) MAY BE SET ASIDE AND THAT OF AO RESTORED. 3. WE HAVE HEARD THE LEARNED DR. NONE FOR THE ASSESSEE HAD APPEARED BEFORE US WHEN THE MATTER WAS CALLED ON FOR HEARING DESPITE THE NOTICE SENT TO THE ASSESSEE IS SERVED. ON PERUSAL OF AOS ORDE R, WE FIND THAT THE 3 ASSESSEE MADE AN APPLICATION FOR EXEMPTION U/S 10(2 3C) WITH THE CHIEF COMMISSIONER OF INCOME-TAX BUT THE SAME HAS NEITHER BEEN REJECTED NO ALLOWED. WE FURTHER FIND THAT FOR PART OF THE PERI OD RELEVANT TO THE ASSTT. YEAR 20002-03, THE ASSESSEE HAS NOT PRODUCED THE BO OKS OF ACCOUNT BEFORE THE AO. THE ASSESSEE HAS ALSO NOT FILED PROPER APP LICATION U/S 11(2) SEEKING INDULGENCE TO APPLY THE INCOME FOR CHARITABLE PURPO SES IN SUBSEQUENT YEAR. THE ASSESSEE HAS NOT SHOWN THE INCOME FOR THE PERIO D FROM 1.4.2001 TO 13.7.2001. 4. ON AN APPEAL, CIT(A) HAS ALSO ACCEPTED THE FACT THAT EXEMPTION U/S 10(23) WAS NOT GRANTED TO THE ASSESSEE. HOWEVER, H E FOUND THAT THE ASSESSEE WAS GRANTED REGISTRATION U/S 12A ON 1.2.2001 W.E.F. 1.4.2000 MEANING THEREBY THAT THE REGISTRATION GRANTED U/S 12A IS EF FECTIVE FOR THIS ASSESSMENT YEAR 2002-03, WHICH IS UNDER CONSIDERATION. THE REG ISTRATION GRANTED IS VALID IN LIGHT OF THE ORDER OF HONBLE ALLAHABAD HIGH COU RT DATED 27.3.2006. THE VARIOUS ADDITIONS MADE BY THE AO IN ABSENCE OF THE DETAILS HAS BEEN DELETED BY THE CIT(A), AND SOME ADDITIONS HAS BEEN CONFIRME D. HOWEVER, THE ASSESSEE IS NOT IN APPEAL AGAINST THAT PART OF THE ORDER OF CIT(A), WHICH HAS GONE AGAINST IT. WE FURTHER FIND THAT THE CIT(A) H AS DIRECTED THE AO TO COMPUTE INCOME FROM 1.4.2001 TO 13.7.2001 AT NIL, W HICH, IN OUR CONSIDERED VIEW, IS NOT JUSTIFIED WITHOUT EXAMINING AND VERIFY ING THE TRANSACTIONS 4 EFFECTED DURING THAT PERIOD. IF THE BOOKS OF ACCOU NTS WERE NOT AVAILABLE WITH THE PRESENT MANAGEMENT, THE PRESENT MANAGEMENT COUL D HAVE PRODUCED ALL OTHER DETAILS, TRANSACTIONS MADE WITH THE BANK OR A NY OTHER AUTHORITY AFTER COLLECTING THE DOCUMENTS FROM THE CONCERNED AUTHORI TY OR PERSON. 5. THE ASSESSEE IS NOT PRESENT BEFORE US TO EX PLAIN THE MATTER SO THAT ISSUE CAN BE DEEPLY EXAMINED. IN THIS SITUATION, WE FIND THAT THE ISSUES INVOLVED IN THIS APPEAL BE RESTORED BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION. THE ASSESSEE SHALL BE AT LIBERTY TO FILE PROPER FOR M OR NOTICE REQUIRED U/S 11(2) OF THE ACT BEFORE THE AO, AND TO ESTABLISH TH AT THE SURPLUS INCOME ACCUMULATED DURING THIS YEAR HAS BEEN DULY APPLIED TOWARDS OBJECT OF THE TRUST WITHIN THE STIPULATED TIME. THE ASSESSEE SHA LL ALSO BE AT LIBERTY TO PRODUCE ALL OTHER EVIDENCES OR DOCUMENTS BEFORE THE AO TO ENABLE HIM TO MAKE FRESH ADJUDICATION OF THE MATTER RAISED IN THI S APPEAL. THE AO SHALL MAKE SUCH FURTHER ENQUIRY OR ENQUIRIES AS HE THINK FIT AND PROPER, WITH REGARD TO THE ISSUES RAISED IN THIS APPEAL ONLY. TH E AO SHALL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THEREFORE, THE ORDER OF AO AS WELL AS CIT(A) TO THE EXTENT OF THE MATTER RAISED IN THIS APPEAL ARE SET ASIDE, AND THE AO IS DIRECTED TO DECIDE THEM AF RESH. WE ORDER ACCORDINGLY. 5 6. IN THE RESULT, THE APPEAL FILED BY THE REVEN UE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 31 ST MAY 2010. (G.E. VEERABHADRAPPA) (C.L. SETH I) VICE PRESIDENT JUDICIAL MEMBER DATED: 31 ST MAY , 2010 VIJAY COPY TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A), MEERUT 5. DR ASSISTANT REGISTRAR