Katyani Shiksha Prasar Samiti, Bulandshahr V. Addl. CIT, Noida

ITA 2371/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7474 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-12-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV DUDEJA
• Assessee Lawyers: ASHWANI JANEJA
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 12A; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SH. N. K. SAINI, A M AND SH. C. M. GARG , J M ITA NO. 957/DEL/2009 : ASSTT. YEAR : 2004 - 05 ITA NO. 2371/DEL/2012 : ASSTT. YEAR: 2004 - 05 KATYANI SHIKSHA PRASAR SAMITI, C/O DR. SUDHIR NURSING HOME, DELHI ROAD, KALAAM, BULANDSHAHR - 203001 VS ADDITIONAL COMMISSIONER OF INCOME TAX, NOIDA RANGE , SECTOR - 20, NOIDA (APPELLANT) (RESPONDENT) PAN NO. AA ATK6727G A SSESSEE BY : SH. ASHWANI JANEJA, ADV. REVENUE BY : SH. GAURAV DUDEJA , SR. DR DATE OF HEARIN G : 17 .1 2 . 2014 DATE O F PRONOUNCEMENT : 19 . 1 2 .2014 ORDER P ER N. K. SAINI , AM: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 28.11.2008 AND 09.02.2012 OF THE LD. CIT(A ) GHAZIABAD. 2. SINCE THE APPEALS ARE CO - RELATED BELONGING TO THE SAME ASSESSEE AND WERE HEARD TOGETHER , SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY . 3 . FIRSTLY WE WILL DEAL WITH ITA NO. 957 /DEL/ 2009 . FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. FOR THAT LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2016000/ - WITHOUT CONSIDERING THE FACTS OF THE CASE AND PREPOSITION OF LAW. ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 2 2. FOR THAT LEARNED CIT(APPEALS) WAS UNJUSTIFIED IN NOT ACCEPTING THE STATUS OF APPELLANT AS EDUCATIONAL INSTITUTION EVEN THOUGH ALL THE REQUIRED DETAILS AND EVIDENCES WERE PRODUCED BEFORE ASSESSING OFFICER AS WELL AS BEFO RE LEARNED CIT(APPEALS). 3 . FOR THAT THE LEARNED CIT(APPEALS) HAS GROSSLY ERRED IN NOT ACCEPTING THE FACT THAT ASSESSING OFFICER HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT, EVEN AFTER NARRATING THE FACTS. 4. THE APPELLANT SEEKS T HE LEAVE TO TAKE UP SUCH FURTHER GROUNDS, AT THE TIME OF HEARING OF APPEAL, WHICH MAY BE NECESSARY IN THE INTEREST OF JUSTICE. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2005 DECLARING LOSS OF RS. 17,600/ - IN THE STATUS OF AOP . THE CASE WAS SELECTED FOR SCRUTINY . D URING THE C OURSE OF ASSESSMENT PROCEEDINGS, T HE AO NOTICED THAT THE ASSESSEE IN ITS BALANCE SHEET HAD SHOWN CORPUS FUND OF RS. 26,15,775/ - OUT OF WHICH EXCESS OF EXPENDITURE INCOME I.E. RS. 17,59 6/ - HAD BEEN REDUCED AND THE BALANCE AMOUNT OF RS. 25,98,179/ - WAS SHOWN IN THE BALANCE SHEET. THE AO ALSO NOTICED THAT THE ASSESSEE HAD RECEIVED DONATION OF RS. 20,16,000/ - DURING THE YEAR UNDER CONSIDERATION. HE ASKED THE ASSESSEE TO FURNISH THE LIST OF DONO RS SHOWING THEIR COMPLETE ADDRESSES AND PAN . THE AO ALSO ASKED THE DETAILS OF ALL THE ENTRIES OF THE BANK ACCOUNTS SPECIFYING THE SOURCE OF DEPOSIT AND THE PURPOSE OF WITHDRAWAL AND THE BASIS OF ITS CLAIM FOR EXEMPTION ON RS. 20,16,000/ - ALLEGEDLY RECEIVED DURING THE YEAR AS DONATION WHEN THE ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 3 SOCIETY WAS NOT BEING GRANTED REGISTRATION U/S 12A OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT IN SHORT). THE ASSESSEE VIDE LETTER DATED 11.08.2006 REPLIED AS UNDER: THE ASSESSEE WAS FORMED SPECIALLY FOR EDUCATIONAL PURPOSES AND AS EVIDENT BY THE MEMORANDUM, THERE WAS NO OTHER OBJECT OF THE SOCIETY EXCEPT TO IMPART EDUCATION TO THE SOCIETY AT LARGE. A PLOT WAS ALLOTTED TO THE ASSESSEE SOCIETY BY GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY. GREATER NOIDA PARTICULARLY & SPECIALLY FOR SETTING UP A SCHOOL. THE ASSESSEE SOCIETY HAS PAID RS. 18,70,891/ - TO GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY, GREATER NOIDA AGAINST THE SAID PLOT BUT TILL DATE GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY, GREATER NO IDA HAS NOT GIVEN THE PHYSICAL POSSESSION OF THE PLOT TO THE ASSESSEE SOCIETY. THIS IS THE ONE AND ONLY REASON THAT THE ASSESSEE SOCIETY COULD NOT START ITS FUNCTIONING. SINCE THE SOCIETY IS AN EDUCATIONAL SOCIETY AND ITS INCOME IS ELIGIBLE FOR EXEMPTION U /S 10(23C) OF THE INCOME TAX ACT, 1961. IT IS REQUESTED TO PLEASE GRANT SOME MORE TIME FOR FURTHER EXPLANATIONS FOR CLAIMING EXEMPTIONS. IF ANY MORE INFORMATION IS REQUIRED THE ASSESSEE SOCIETY IS READY TO FURNISH. 5 . THE ASSESSEE ALSO SPECIFIED THE SO URCE OF DEPOSITS IN THE BANK ACCOUNTS AND THE PURPOSE OF WITHDRAWAL WHICH HAS BEEN DISCUSSED BY THE AO AT PAGE NO. 5 OF THE ASSESSMENT ORDER DATED 06.11.2006 FOR THE COST OF REPETITION THE SAME IS NOT DISCUSSED HEREIN. THE AO ALSO ASKED THE ASSESSEE TO EXP LAIN AS TO HOW T HE IMPUGNED AMOUNT WAS EXEMPTED, W HEN THE ASSESSEE SOCIETY HAD NOT BEEN GRANTED 12A CERTIFICATE . I N RESPONSE TO THAT THE ASSESSEE SUBMITTED AS UNDER: CONFIRMATORY LETTERS FROM DONORS BY GIVING THEIR D.D. NOS. AMOUNT ALONGWITH COPIES OF THE IR I.T. RETURNS, COPY OF PAN CARD, ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 4 COPIES OF I.T./W.T ASSESSMENT ORDERS (WHEREVER COMPLETED/AVAILABLE), COPIES OF THEIR BALANCE SHEET, COPIES OF BANK ACCOUNTS ARE BEING ENCLOSED HEREWITH FOR YOUR KIND CONSIDERATION PLEASE (PAGE NOS. 17 TO 138). THE ASSES SEE SOCIETY WAS FORMED SPECIALLY F OR EDUCATIONAL PURPOSES AND AS EVIDENT BY THE MEMORANDUM THERE WAS NO OBJECT OF THE ASSESSEE S SOCIETY EXCEPT TO IMPART EDUCATION TO THE SOCIETY AT LARGE. A PLOT WAS ALLOTTED TO THE ASSESSEE SOCIETY BY GREATER NOIDA INDUST RIAL DEVELO PMENT AUTHORITY FOR SETTING UP A SCHOOL. THE SOCIETY HAS PAID RS. 18,70,891/ - TO GR. NOIDA BUT IT HAS NOT RECEIVED THE PHYSICAL POSSESSION OF THE PLOT. IT IS FOR THIS REASON THAT THE SOCIETY COULD NOT START ITS FUNCTIONING. SINCE THE SOCIETY IS AN EDUCATIONAL SOCIETY ITS INCOME IS ELIGIBLE FOR EXEMPTION U/S 10(23C) OF THE INCOME TAX ACT, 1961. 6 . THE AO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE COPY OF BANK ACCOUNTS OF THE ASSESSEE REVEALED THAT THE ENTIRE AMOUNT I .E. RS. 20,16,000/ - HAD BEEN REC EIVED ON 22.05.2003 AND ON THE SAME DAY IT WAS WITHDRAWN BY TRANSFER TO CURRENT A/C NO. 62658. HE ALSO POINTED OUT THAT THE BANK HAD SENT COPIES OF DRAFTS WHICH WERE CLUBBED AND DEPOSITED ON 22.05.2003 IN T HE BANK ACCOUNT OF TH E ASSESSEE, D ETAIL OF THE SAME HAS BEEN GIVEN AT PAGE NO. 7 OF THE ASSESSMENT ORDER. THE AO ALSO NOTED THAT THE ASSESSEE PURCHASED DRAFT FROM TWO BANKS I.E. STATE BANK OF BIKANER & JAIPUR, FAIZ ROAD, KAROL BAGH, DELHI AND STATE BANK OF BIKANER & JAIPUR, NE W ROHTAK ROAD, NEW DELHI ON THE SAME DAY AT THE SAME TIME. THE AO ISSUED A DETAILED QUESTIONNAIRE TO THE ASSESSEE REQUIRING TO EXPLAIN AS UNDER: A DETAILED QUESTIONNAIRE WAS THEREFORE ISSUED VIDE O RDER S HEET ENTRY DATED 11.08.2006 AS PER WHICH THE ASSESS EE WAS REQUIRED TO ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 5 EXPLAIN AS UNDER: - 1) THAT COPY OF BANK ACCOUNT OF THE SOCIETY OBTAINED FROM PUNJAB NATIONAL BANK, BULANDSHAHAR SHOWS AS UNDER: - A) THAT THE BANK ACCOUNT WAS OPENED ON 20.05.2003. B) ALL THE AMOUNTS ALLEGEDLY RECEIVED THROUGH DRAFTS WERE CRE DITED ON THE SAME DAY I.E. RS. 20,16,000/ - ON 20.05.2003. C) THE ENTIRE AMOUNT WAS GIVEN ON THE SAME DAY I.E. 20.05.2003 TO THE MEMBER TRUSTEE MR. SUDHIR AGARWAL WHO IS DIRECTOR OF M/S GREA TER NOIDA DIAG CENTRE & N URSING HOME P. LTD., NEW DELHI. D) THE DRAFTS THROUGH WHICH THE ALLEGED DONATION HAS BEEN RECEIVED HAVE BEEN PREPARED FROM THE TWO BANKS I.E. STATE BANK OF BIKANER & JAIPUR, FAIZ ROAD, KAROL BAGH, DELHI AND STATE BANK OF BIKANER & JAIPUR, NEW ROHTAK ROAD, NEW DELHI ON THE SAME DAY AND IN CONTINUANCE N UMBERS. THE MEMORANDUM OF DONATION ARE IN THE SAME LANGUAGE AND HAVE BEEN WRITTEN BY THE SAME PERSON. 7 . THE AO MENTIONED IN THE ASSESSMENT ORDER DATED 06.11.2006 THAT THE ASSESSEE DID NOT FURNISH ANY REPLY ON THE SPECIFIED DATE. HE, THEREFORE, TO VERIFY THE GENUINENESS OF THE DONATIONS , ISSUED THE SUMMON S U/S 131 OF THE ACT TO THE RESPECTIVE DONORS. ACCORDING TO THE AO , THE SUMMONS IN 13 OUT OF 18 CASES WERE RETURNED BACK BY POSTAL AUTHORITIES WITH THE REMARKS NO SUCH PERSONS AND THE REMAINING 5 DONORS DID NOT ATTEND ON THE DATE FIXED. THE AO DEPUTED TWO INCOME TAX INSPECTORS TO VERIFY THE CORRECT AND RECENT ADDRESSES OF THE DONORS. THE INSPECTORS REPORTED THAT THOSE PERSONS WERE NOT RESIDING AT THE ADDRESSES MENTIONED. THE AO WAS OF THE VIEW THAT THE P ERSONS HAD NEVER STAYED OR WERE NEVER RESIDENTS AT THE ADDRESSES AT ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 6 WHICH THEY HAD FILED THE INCOME TAX RETURNS. HE ALSO MENTIONED THAT THE OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO ATTEND THE PROCEEDING ON 03.11.2006, HOWEVER, NOBODY APPEARED ON THE SAID D ATE. HE, THEREFORE, DECIDED THE ISSUE IN THE ABSENCE OF THE ASSESSEE AND MADE THE ADDITION OF RS. 20,16,000/ - BY OBSERVING AS UNDER: THE ASSESSEE HAS BEEN UNABLE TO PROVE THE GENUINENESS OF THE SOURCE OF RECEIPT TOWARDS CORPUS FUND AMOUNTING TO RS. 20,16, 000/ - . THE ASSESSEE HAS ALSO BEEN UNABLE TO PROVE THE BASIS OF ITS CLAIM THAT THE RECEIPT OF AMOUNT SHOWN AS CORPUS FUND IS NOT TAXABLE IN ITS HANDS AS IT IS NOT REGISTERED U/S 12A OF THE ACT. FURTHER AS THE SOCIETY HAS NOT STARTED ANY EDUCATIONAL ACTIVITY , THE ASSESSEE S CLAIM FOR EXEMPTION U/S 10(23C) ALSO CANNOT BE ACCEPTED. THE ASSESSEE S CLAIM FOR EXEMPTION U/S 10(23C) IS ALSO NOT ACCEPTABLE AS THE ASSESSEE HAS BEEN UNABLE TO PRO VE THE GENUINENESS OF THE RECEI PTS IN ITS HANDS AND THUS TO SHOW THAT ITS ACTIVITIES ARE GENUINE, ABOVE BOARD AND IT HAS RIGHT TO CLAIM EXEMPTION U/S 10(23C). THEREFORE, THE ENTIRE RECEIPT IS NOT ONLY OUT OF UN - DISCLOSED SOURCES BUT ALSO CANNOT BE CLAIMED TO BE EXEMPT. IT WOULD THUS BE ADDED TO THE ASSESSEE S TOTAL RECEIPTS THOU GH FROM UN - ACCOUNTED SOURCES . 8 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSION WHICH HAS BEEN DISCUSSED BY THE LD. CIT(A) IN PARA 5 OF THE IMPUGNED ORDER . ON THE C OST OF REPETITION , T HE SAME I S NOT REPRODUCED HEREIN. THE ASSESSEE STATED THAT A PROPER OPPORTUNITY OF BEING HEARD HAD NOT BEEN AFFORDED AND ALSO STATED AS UNDER: A) ONE NOTICE FOR ASSESSMENT YEAR 2004 - 05 AND ANOTHER NOTICE FOR ASSESSMENT YEAR 2005 - 06 WERE DISPATCHED FROM THE OFFICE OF ADDITIONAL COMMISSIONER OF INCOME TAX, NOIDA IN SINGLE ENVELOPE ON 26.10.2006, WHICH WAS SERVED UPON THE ASSESSEE ON 02.11.2006, FIXING THE DATE OF COMPLIANCE ON 03.11.2006. ON THE ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 7 OTHER HAND LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX HAS SERVED THE NOTICE U/S 143(2) FOR THE ASSESSMENT YEAR 2005 - 06 ON 31.10.2006 THROUGH ITI. AT THAT MOMENT LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX WAS HAVING AN OPTION ALSO TO SERVE THE NOTICE FOR ASSESSMENT YEAR 2004 - 05 THROUGH ITI. IT CLEARLY SHOWS THAT LEARNED A DDITIONAL COMMISSIONER OF INCOME TAX HAS NOT WILLING TO ALLOW SUFFICIENT TIME TO THE ASSESSEE FOR COMPLIANCE OF NOTICE FOR ASSESSMENT YEAR 2004 - 05. B) THAT ON 03.11.2006, LOCAL ELECTION WERE BEING HELD IN SOME PARTS OF DISTRICT BULANDSHAHAR, GHAZIABAD AND GAUTAM BUDH NAGAR. THE ELECTIONS WERE BEING HELD IN THE AREA WHICH IS THE ONLY WAY TO THE OFFICE OF ADDITIONAL COMMISSIONER OF INCOME TAX, NOIDA. BE CAUSE OF ELECTION/POLLING, THE BORDERS OF DISTT. BULANDSHAHAR AS WELL AS DISTT. G. B. NAGAR WAS SEALED BY T HE DISTRICT AUTHORITIES FROM 8.00 A.M. TO 5.00 P.M. MEANING THEREBY THE ASSESSEE WAS RESTRICTED BY A REASONABLE CAUSE, TO ATTEND THE PROCEEDINGS ON 03.11.2006. ON 4 TH & 5 TH DAY OF NOV. 2006 INCOME TAX OFFICE WAS CLOSED ON ACCOUNT OF SATURDAY & SUNDAY. ON 0 6.11.2006 I.E. IMMEDIA TE NEXT WORKING DAYS, COUNSEL OF THE ASSESSEE NAMELY CA P. K. JAIN, MR. DEEPAK GOYAL, ADVOCATE HAVE ATTENDED THE PROCEEDINGS ALONG WITH DR. SUDHIR AGARWAL, PRESIDENT OF THE SOCIETY. BUT LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX HA S REFUSED TO TAKE UP THE CASE AND AFTER DETAINING ALL THE 03 PERSONS FOR MORE THAN 03 HOURS, SERVED THE ASSESSMENT ORDER ON THE SAME DAY. IT IS ALSO EVIDENT FROM THE DATE OF ORDER THAT LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX HAS NOT AFFORDED A PROPER & REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ALSO EVIDENT FROM THE FACTS NARRATED IN THE ORDER OF LEANED ADDITIONAL COMMISSIONER OF INCOME TAX ON PAGE NO. 11 THAT SHE HAD NOT ALLOWED A PROPER & REASONABLE OPPORTUNITY OF BEING HEARD TO TH E APPELLANT. IN THESE CIRCUMSTANCES IT CLEARLY SHOWS THE ORDER PASSED BY ADDITIONAL COMMISSIONER OF INCOME TAX IS VOID & LIABLE TO BE CANCELLED. ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 8 9 . THE LD. CIT(A) DID NOT FIND MERIT IN THE ABOVE SUBMISSIONS OF THE ASSESSEE AND SUSTAINED THE ADDITION BY O BSERVING AS UNDER: THE AO HAS BROUGHT ON RECORD THAT IN SPITE OF OPPORTUNITIES PROVIDED, THE ASSESSEE NEITHER PROVIDED THE LATEST ADDRESS OF THE ABOVE PERSONS NOR PRODUCED THEM FOR EXAMINATION. THE ABOVE FACTS BROUGHT OUT BY THE AO CLEARLY GO TO QUESTION THE GENUINENESS OF THE TRANSACTION. THE CASE LAWS RELIED UPON BY THE LEARNED AR IN CASE OF CIT VS STELLAR INVESTMENT LTD. (1991) 192 ITR 287 (DEL.); CIT AGRA VS PREM KUMAR (2007) 161 TAXMAN 50 (ALL.) AND DIT (EXEMPTION) VS RAUNAQ EDUCATION FOUNDATION (2007 ) 294 ITR 76 (DEL.) DO NOT HELP THE ASSESSEE S CASE AS THESE DECISIONS HAVE BEEN RENDERED BY THE HON BLE COURTS IN ALTOGETHER A DIFFERENT CONTEXT AND HENCE THE SAME ARE CLEARLY DISTINGUISHABLE. CONSIDERING THE AFORESAID FACTS AND PROPOSITION OF LAW, THE ACTION OF THE AO IN BRINGING TO TAX AN AMOUNT OF RS. 20,16,000/ - IS HEREBY CONFIRMED. 10 . NOW THE ASSESSEE I S IN APPEAL . A T THE FIRST INSTANCE THE LD. COUNSEL FOR THE ASSESSEE ARGUED THE GROUND NO. 3 WHICH RELATES TO THE PROPER OPPORTUNITY OF BEING HEAR D NOT AFFORDED TO THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE FURNISHED THE NEW ADDRESSES OF THE DO NORS TO THE LD. CIT(A) BUT HE HAD NOT CONSIDERED THE SAME FOR THE REASONS BEST KNOWN TO HIM. HE DREW OUR ATTENTION TOWARDS PAGE NOS. 217 TO 219 OF THE ASSES SEE S PAPER BOOK WHICH IS THE DETAIL OF THE OLD AND NEW ADDRESSES OF THE DONORS ALONGWITH THE AMOUNT OF DONATION. IT WAS CONTENDED THAT THE AO FIXED THE DATE OF HEARING ON 03.11.2006 BUT ON THE SAID DATE LOCAL ELECTIONS WERE BEING HELD IN THE AREA WHICH WA S THE ONLY WAY TO THE OFFICE OF THE AO AND THE BORDERS OF THE DISTRICT BULANDSHAHAR AS WELL AS GREATER NOIDA WERE ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 9 SEALED FROM 8.00 A.M. TO 5.00 P.M. , THEREFORE, THE ASSESSEE WAS RESTRICTED BY A REASONABLE CAUSE TO ATTEND THE PROCEEDINGS ON 03.11.2006. IT W AS FURTHER STATED THAT 4 TH AND 5 TH OF NOVEMBER 2006 WERE THE HOLIDAY S I.E. SATURDAY & SUNDAY AND THE COUNSELS OF THE ASSESSEE ALONGWITH THE PRESIDENT OF THE ASSESSEE S SOCIETY APPEARED ON 06.11.2006 TO ATTEND THE PROCEEDINGS BEFORE THE AO WHO INSTEAD OF GI VING OPPORTUNITY OF BEING HEARD SERVED THE ASSESSMENT ORDER AND THEREFORE PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE BY THE AO . IT WAS CONTENDED THAT THE LD. CIT(A) W ITHOUT CONSIDERING THE FACTS OF THE CASE IN RIGHT PROSPECTIVE AND WITHOUT GOING THROUGH THE DETAILS FURNISHED BY THE ASSESSEE CONFIRMED THE ADDITION IN ARBITRARY MANNER. HE REQUESTED THAT THE CASE MAY BE REMANDED BACK TO THE AO TO BE DECIDED AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11 . IN HIS RIVA L SUBMISSIONS THE LD. DR VEHEMENTLY ARGUED AND STATED THAT THE AO HAD GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO ISSUED THE SUMMONS TO THE DONORS ON THE ADDRESSES MENTIONED IN THE RETURNS OF INCOME OF THE DONORS BUT THE SAME WERE RETURNED BACK BY THE POSTAL AUTHORITIES BY MAKING THE REMARKS THAT THOSE PERSONS WERE NOT RESIDING AT THE GIVEN ADDRESSES. IT WAS FURTHER STATED THAT THE ASSESSEE NEVER APPLIED TO THE LD. CIT(A) FOR ADMISSION OF NEW EVIDENCES THEREFORE, THERE WAS NO VIOLAT ION OF RULE 46A OF THE INCOME TAX RULES, 1962. IT WAS CONTENDED THAT THE DONORS WERE NOT HAVING ANY IMMOVABLE PROPERTY AND THEIR INCOME WAS NOT SUFFICIENT TO GIVE THE ALLEGED DONATIONS TO THE ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 10 ASSESSEE. THEREFORE THE ADDITION WAS RIGHTLY MADE BY THE AO AND THE LD. CIT(A) WAS FULLY JUSTIFIED IN CONFIRMING THE SAID ADDITION. IT WAS PLEADED THAT THE CASE SHOULD NOT BE SET ASIDE TO THE AO AS REQUESTED BY THE LD. COUNSEL FOR THE ASSESSEE . 12 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE AO ALLOWED THE LAST OPPORTUNITY TO THE ASSESSEE BY FIXING HEARING OF THE CASE ON 03.11.2006 . O N THE SAID D ATE, T HE ASSESSEE COULD NOT APPEAR AND THE EXPLANA TION WAS GIVEN THAT THE LOCAL ELECTIONS BEING HELD IN SOME PARTS OF THE DISTRICT BULANDSHAHAR, GAUTAM BUDH NA GAR, NOID A, AND THE BOARDERS WERE SEALED, SO THERE WAS A REASONABLE CAUSE FOR NOT ATTENDING THE PROCEEDINGS ON 03.11.2006. THE CONTENTION OF THE AS SESSEE THAT ON 06.11.2006 COUNSELS AS WELL AS THE PRESIDENT OF THE ASSESSEE SOCIETY APPEARED BEFORE THE AO HAD NOT BEEN REBUTTED. IT IS ALSO NOTICED THAT THE ASSESSMENT ORDER HAS BEEN PASSED BY THE AO ON 06.11.2006. IN THE PRESENT CASE THE ASSESSEE FURNISH ED THE DETAILS OF THE DONORS IN WHICH THE OLD AND NEW ADDRESSES WERE MENTIONED , COPY OF WHICH IS PLACED AT PAGE NOS. 217 TO 219 OF THE ASSESSEE S PAPER BOOK BUT THE LD. CIT(A) HAD NOT CONSIDERED THE SAID LIST OF THE DONORS WHILE PASSING THE IMPUGNED ORDER. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PERTAM . IN OUR OPINION , IN THE PRESENT CASE A PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE BY THE AO TO EXPLAIN ITS CAS E. WE, THEREFORE, DEEM IT PROPER TO SET ITA NO. 957/DEL/2009& 2371 /DEL/20 12 KATYANI SHIKSHA PRASAR SAMITI 11 ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN ITA NO . 2371/DEL/2012 1 3 . THE GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT, WHICH WAS LEVIED ON THE BASIS OF THE ADDITION MADE BY THE AO . AS THE ISSUE RELATING TO THE ADDITION HAS BEEN REMANDED BACK TO TH E FILE OF THE AO IN THE FORMER PART OF THIS ORDER WHILE DECIDING THE APPEAL IN ITA NO. 957/DEL/2009 . THEREFORE, THIS ISSUE IS ALSO REMANDED BACK TO THE FILE OF THE AO TO BE DECIDED AFRESH AFTER PROVIDING DUE AND A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 14 . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRONOU N CED IN T HE OPEN COURT ON 19 / 12 / 2014 ) . SD/ - SD/ - ( C. M. GARG ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 19 / 1 2 / 2014 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR