Pacific Projects Educational Society, New Delhi V. DDIT (E), New Delhi

ITA 2573/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98019 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 01-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Assessee Lawyers: PAYAL GOYAL
• Keywords: Capital asset; Opportunity of being heard
• Section: 143(3); 12A; 12AA; 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA PILLAI , JM ITA NO S . 2573/DEL/2012 : ASSTT. YEAR : 2006 - 07 PACIFIC PROJECTS EDUCATIONAL SOCIETY, PLOT NO. 1, POCKET NO. 11, SECTOR - 5, ROHINI, DELHI - 110085 VS DDIT(E), TRUST CIR. - IV, DELHI (APPELLANT) (RESPONDENT) PAN NO. A ABTP1483D ASSESSEE BY : MS. PAYAL GOYAL, CA REVENUE BY : SH. VED PRAKASH MISHRA , SR. DR DATE OF HEARING : 01.12 .2015 DATE OF PRONOUNCEMENT : 01 .12 .2015 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 29.03.2012 OF CIT(A) - XXI , NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THI S APPEAL: 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER AND CIT(A) ERRED BY CONSIDERING THE APPELLANT AS NON REGISTERED SOCIETY U/S 12A OF THE INCOME TAX ACT, 1961 WHEREAS THE APPELLANT HAD FILED THE FORM NO. 10A D ATED 24.03.2006 WHICH WAS NOT DISPOSED IN ACCORDANCE TO SUB SECTION 2 OF SECTION 12AA OF THE INCOME TAX ACT, 1961. HENCE THE SOCIETY IS DEEMED REGISTERED U/S 12A AND THE PRESUMPTION OF LD. AO & CIT(A) WAS WRONG. ITA NO S. 2573 /DEL /201 2 PACIFIC PROJECTS EDUCATIONAL SOCIETY 2 2. WITHOUT PREJUDICE TO OUR MAIN CONTENTION THAT THE APPELLANT IS DEEMED REGISTERED U/S 12A OF THE INCOME TAX ACT, 1961, IF THE APPELLANT IS NON REGISTERED INSTITUTION THEN THE ASSESSING OFFICER HAD WRONGLY ASSUMED THE JURISDICTION OF THE APPELLANT AND PASSED THE ORDER U/S 143(3) DATED 30.12.2008 WH ICH IS NOT IN ACCORDANCE TO THE LAW AND SHALL BE DECLARED AS NULL AND VOID. 3. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER AND CIT(A) WRONGLY DID NOT ALLOW THE APPLICATION OF INCOME OF RS. 29,01,693 TOWARDS ACQUISITI ON OF CAPITAL ASSET WHICH IS AVAILABLE TO THE APPELLANT AS DEEMED REGISTERED INSTITUTION. HENCE THE DISALLOWANCE IS UNJUSTIFIED. 4. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE APPELLANT ITSELF CONSIDERED THE MEMBERS CONTRIBUTION OF RS. 12.00 LACS AS THE INCOME UNDER INCOME & EXPENDITURE ACCOUNT OF THE INSTITUTION, THEN APPLYING THE PROVISION OF SECTION 68 AS INCOME BY LEARNED CIT(A) AND THE ASSESSING OFFICER HAS NO MEANING IN THE LAW. 5. WITHOUT PREJUDICE TO OUR MAIN CONTENTION THAT A) THE APPE LLANT IS DEEMED REGISTERED INSTITUTION UNDER SECTION 12A AND B) NOT ALLOWING THE APPLICATION OF RS. 29,01,693/ - TOWARDS ACQUISITION OF CAPITAL ASSETS IS UNJUSTIFIED. THE LEARNED ASSESSING OFFICER DID NOT PROVIDE/ALLOW THE BASIC EXEMPTION OF RS. 1,00,000/ - AS APPLICABLE TO THE AOPS AS PER THE PROVISION OF THE INCOME TAX ACT, ITA NO S. 2573 /DEL /201 2 PACIFIC PROJECTS EDUCATIONAL SOCIETY 3 1961 WHILE CALCULATING THE TAX PAYABLE AND CALCULATED WRONG TAX AT RATE OF TAX AT 30%. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR MODIFY ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HE ARING. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED BY THE LD. CIT(A) WHO DECIDED THE APPEAL OF THE ASSESSEE EX - PARTE AND SUSTAINED THE ADDITION MADE BY THE AO. SHE REQUESTED TO SET ASIDE THIS CASE TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 . IN HIS RIVAL SUBMISSION THE LD. DR ALTHOUGH SUPPORTED THE ORDER O F THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID FACTS NARRATED BY THE LD. COUNSEL FOR THE ASSESSEE. HE ALSO SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE AND NEVER APPEAR ED BEFORE THE LD. CIT(A) IN SPITE O F THE FACT THAT MANY OPPORTUNITIES O F BEING HEARD WERE PROVIDED BY THE LD. CIT(A). 5 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE E X - PARTE WHICH IS CLEARLY MENTIONED IN PARA 2 OF THE IMPUGNED ORDER . HE SIMPLY STATED THAT NOTICE OF HEARING WAS ISSUED ON 24.02.2011 BUT IT IS ITA NO S. 2573 /DEL /201 2 PACIFIC PROJECTS EDUCATIONAL SOCIETY 4 NOT MENTIONED WHEN THE CASE WAS FIXED FOR HEARING. IN THE INSTANT CASE , NOTHING IS BROUGHT ON RECORD TO SUBSTANTI ATE THAT THE SAID NOTICE DATED 24.02.2011 WAS SERVED UPON THE ASSESSEE FOR HEARING. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND NOT TO SEEK UNWARRANTED OR UNDUE ADJOURNMENT. 6 . IN THE RESULT, THE APP EAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 01 /12 /2015 ) SD/ - SD/ - (BEENA PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 01 /12 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR