Development Managament Trust, Noida V. ITO (E), New Delhi

ITA 2654/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65433 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-09-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 24-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHI LAL
• Assessee Lawyers: SHIV KUMAR
• Keywords: Opportunity of being heard; Additional evidence; Assessment record
• Section: 10B; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI JOGINDER SINGH: JUDICIAL MEMBER & SHRI SHAMIM YAHYA: ACCOUNTANT MEMBER ITA NO. 2654/DEL/11 A.YRS. 2005-06 DEVELOPMENT MANAGEMENT TRUST VS. INCOME-TAX OFFICE R (E), A-81, SECTOR-65, NOIDA. TRUST WARD-III, NEW DEL HI. PAN: AAATD 3348 Q ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI SHIV KUMAR CA RESPONDENT BY : SHRI PRITHI LAL SR. DR O R D E R PER JOGINDER SINGH, J.M: : THIS APPEAL IS BY THE ASSESSEE CHALLENGING THE ORDE R DATED 25-3-2011 OF THE LD. CIT(A) ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE AND CONSEQUEN TLY CONFIRMING THE DISALLOWANCE OF EXEMPTION U/S 11 & 12 OF THE I.T. A CT, IGNORING THE FACTS AND SUBMISSIONS ALONG WITH ADDITIONAL EVIDENCE PLACED O N RECORD. 2. DURING HEARING WE HAVE HEARD SHRI SHIV KUMAR LEA RNED COUNSEL FOR THE ASSESSEE AND SHRI PRITHI LAL LD. SR. DR. 3. THE CRUX OF THE ARGUMENTS ON BEHALF OF THE ASSES SEE IS THAT ADDITIONAL EVIDENCE MAY BE ADMITTED IN THE INTEREST OF JUSTICE AND THE ASSESSEE SHOULD BE PROVIDED FAIR CHANCE TO PLEAD ITS CASE WITH THE HELP OF ADDITIONAL EVIDENCE FILED BEFORE LD. CIT(A). ITA NO. 2654/DEL/11 DEVELOPMENT MANAGEMENT TRUST 2 4. ON THE OTHER HAND, LD. SR. DR SHRI PRITHI LAL CO NTENDED THAT THE ASSESSEE HAS ALREADY BEEN GRANTED SUFFICIENT OPPORT UNITY. HE FURTHER RELIED ON THE ORDER OF CIT(A). 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 5.1. THE FACTS, IN BRIEF, ARE THAT ASSESSEE TRUST W AS FORMED BY TRUST DEED DATED 14-10-1997 DECLARING NIL INCOME IN ITS RETURN FILED ON 31-10-2005. THE RETURN WAS ACCOMPANIED BY AUDIT REPORT IN FORM NO. 10B ALONG WITH ANNEXURES, COMPUTATION OF INCOME, BALANCE-SHEET AND P&L A/C ETC. SINCE THE CASE WAS SELECTED FOR SCRUTINY, NOTICE U/S 143( 2) OF THE ACT WAS SERVED UPON THE ASSESSEE, TO WHICH THE ASSESSEE ATTENDED T HE PROCEEDINGS. WE FIND FROM THE ASSESSMENT RECORD, THAT DURING ASSESSMENT PROCEEDINGS, THE CASE WAS ADJOURNED ON VARIOUS OCCASIONS DUE TO VARIOUS R EASONS AND ON VARIOUS OCCASIONS THE ASSESSEE ALSO ATTENDED THE PROCEEDING S. THERE IS AN OBSERVATION IN THE ASSESSMENT ORDER THAT IN RESPECT OF DONATIO NS, NO CONFIRMATION WAS FILED BY THE ASSESSEE AND MERE INFORMATION IN THE F ORM OF PAN NOS. WAS FILED. AS PER THE ASSESSING OFFICER, IT DID NOT DE PICT THE TRUE PICTURE. HE ULTIMATELY CONCLUDED THAT THE ASSESSEE TRUST WAS NO T CARRYING OUT CHARITABLE ACTIVITIES WITHIN THE MEANING OF SEC. 2(15) OF THE ACT. 5.2. ON APPEAL, AS MENTIONED IN PARA 3.1, THE ASSES SEE FILED VARIOUS DETAILS AND REMAND REPORT WAS ALSO SOUGHT FROM THE ASSESSIN G OFFICER. IN COMPLIANCE TO THE REMAND REPORT DATED 23-3-2009, A REJOINDER WAS ALSO FILED BY THE ASSESSEE. IT WAS CLAIMED BY THE ASSESSEE THA T THE ASSESSING OFFICER HAS MAINLY REPEATED THE AVERMENTS MADE IN THE ASSES SMENT ORDER AND IGNORING THE TRUE FACTS. IT HAS ALSO BEEN PLEADED T HAT VARIOUS DETAILS, WHICH WERE ASKED FOR BY THE ASSESSING OFFICER , WERE ALSO FILED ALONG WITH BOOKS OF A/CS AND STILL THE ASSESSING OFFICER WITHOUT VERIF YING THE FACTS CONCLUDED ITA NO. 2654/DEL/11 DEVELOPMENT MANAGEMENT TRUST 3 THAT NO CHARITABLE ACTIVITIES IS DONE BY THE ASSESS EE. LD. CIT(A) IN PARA 3.5 HAS ALSO MENTIONED THAT ADDITIONAL EVIDENCE UNDER R ULE 46A(1) OF THE I.T. RULES WERE FILED BY THE ASSESSEE AND IT WAS CONCLUD ED THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WAS NOT ADMITTED A S SUFFICIENT OPPORTUNITY WAS GRANTED BY THE ASSESSING OFFICER. 5.3. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES NARRATED BEFORE US BY THE LEARNED COUNSEL FOR THE ASSESSEE WE ARE OF THE CONSIDERED OPINION THAT KEEPING IN VIEW THE PRINCIPLE OF NATUR AL JUSTICE NO PERSON SHOULD BE CONDEMNED UNHEARD. THEREFORE, THIS APPEAL IS REMANDED BACK TO THE FILE OF LD. ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCE, IF ANY, FILED BY THE ASSESSEE AND THEN D ECIDE THE ISSUE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. 6. FINALLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ONLY. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L D. AUTHORIZED REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 18-09-2012. SD/- SD/- ( SHAMIM YAHYA ) ( JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18-09-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR ITA NO. 2654/DEL/11 DEVELOPMENT MANAGEMENT TRUST 4