R.D.College of Education, Meerut V. DCIT,Exemption Ward, Ghaziabad

ITA 2769/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4290 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

- INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D+SMC: NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO.:-2769/DEL/2018 ASSESSMENT YEAR: 2010-11 O R D E R PER AMIT SHUKLA, J.M. THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 9.2.2018 PASSED BY LD. CIT (APPEALS) MEERUT FOR THE QUANTUM OF ASSESSMENT PASSED U/S 147/144 FOR THE ASSESSMENT YEAR 2010-11. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1 THAT, LEARNED CIT (A) GROSSLY ERRED IN DISMISSING ADDITIONAL EVIDENCES WITHOUT ANY OPPORTUNITY ON THIS ISSUE, ONLY AND ONLY BECAUSE NEW AR FAILED TO FILE APPLICATION UNDER RULE 46A WHILE ASSESSEE HAD FULLY DEMONSTRATED THE SUFFICIENT CAUSE IN TERMS OF R.D. COLLEGE OF EDUCATION, MEERUT C/O AKHILESH KUMAR, ADVOCATE, CHAMBER NO. 206-207, ANSL SATYAM, RDC RAJ NAGAR, GHAZIABAD, GHAZIABAD UTTAR PRADESH VS. DCIT, EXEMPTION WARD GHAZIABAD PAN AAAAR5783Q (APPELLANT) (RESPONDENT) ASSESSEE BY: NONE DEPARTMENT BY : SHRI KOUSHLENDRA TIWARI, SR.DR DATE OF HEARING 13/08 /201 8 DATE OF PRONOUNCEMENT 29 / 10 /2018 2 RULE 46A(B)/(C) AND NO SPECIFIC APPLICATION IS PRESCRIBED UNDER THE LAW FOR THIS PURPOSE. 2. THAT, LEARNED CIT (A) GROSSLY ERRED IS DISMISSING THE APPEAL IN LIMINE EVEN WITHOUT DISPOSING GROUNDS OF APPEALS AND WITHOUT CONSIDERING SUBMISSIONS OF THE ASSESSEE, BESIDE NEITHER ANY OPPORTUNITY OF BEING HEARD IS PROVIDED NOR ANY ENQUIRY IS MADE ON THE MERITS OF CASE, HENCE RULE OF SUBSTANTIAL JUSTICE ARE DEFEATED. 3. THAT, WITHOUT PREJUDICE TO ABOVE AND ONLY IN ALTERATIVE, NOTICE IS AGAINST THE LAW AND ON MERITS ADDITION OF RS. 35,30,500/- U/S 68 OF THE ACT, BEING THE STUDENTS FEE EXEMPTED U/S 10(23C)(IIIAD), IS WITHOUT ANY BASIS AND MATERIAL AND AGAINST THE PROVISIONS OF LAW. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE; THEREFORE, APPEAL OF THE ASSESSEE IS BEING DECIDED ON THE BASIS OF MATERIAL PLACED ON RECORD. ON THE PERUSAL OF THE IMPUGNED ORDER IT IS SEEN THAT, BASED ON AIR INFORMATION, PROCEEDINGS U/S 147/148 WAS INITIATED VIDE NOTICE DATED 30.3.2017. HOWEVER, IN COMPLIANCE WITH SUCH NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY OTHER NOTICES SENT THEREAFTER WERE COMPLIED WITH. ACCORDINGLY, THE AO PASSED THE EX-PARTE ORDER CONFIRMING THE ENTIRE CASH DEPOSIT OF RS. 35,30,500/- IN THE BANK ACCOUNT TO BE ADDED U/S 68. 3. BEFORE THE LD. CIT (A) IT WAS SUBMITTED THAT SUFFICIENT TIME WAS NOT ALLOWED TO THE ASSESSEE AND ONLY NOTICE RECEIVED BY THE ASSESSEE WAS DATED 30.10.2017 AND THE DATE OF HEARING FIXED FOR HEARING WAS 3.11.2017 AND SUCH NOTICE TOO WAS RECEIVED ON 4.11.2017. HENCE ORDER HAS BEEN PASSED WITHOUT SERVING PROPER NOTICE TO THE ASSESSEE. IT WAS ALSO SUBMITTED THAT ASSESSEE RUNS AN EDUCATIONAL INSTITUTION WHICH EXISTED SOLELY FOR EDUCATIONAL PURPOSES AND ITS RECEIPTS WAS LESS THAN RS. 1 CRORE AND THEREFORE, IT WAS ENTITLED FOR EXEMPTION U/S 10(23C) (IIIAD). FURTHER, THE CASH DEPOSITED IN THE BANK ACCOUNT WAS BY WAY OF FEES RECEIVED FROM THE STUDENTS AS ASSESSEE RUNS A COLLEGE AND SAME WAS DEPOSITED IN THE BANK ACCOUNT; AND IN SUPPORT TO PROVE 3 THE SOURCE OF CASH DEPOSIT VARIOUS DOCUMENTS AND EVIDENCES WERE ALSO FURNISHED BEFORE THE CIT (A). HOWEVER, LD. CIT (A) HELD THAT SUCH AN EVIDENCE FILED BEFORE HIM CONSTITUTES AN ADDITIONAL EVIDENCE FOR WHICH NO PETITION UNDER RULE 46A HAS BEEN FILED. THEREFORE, HE HELD THAT SUCH ADDITIONAL EVIDENCES CANNOT BE ACCEPTED AND CONFIRMED THE ENTIRE ADDITION. 4. ON THE PERUSAL OF THE IMPUGNED ORDER, IT APPEARS THAT AT THE ASSESSMENT STAGE, NOTICES COULD NOT BE RECEIVED BY THE ASSESSEE AND ONE NOTICE DATED 30.10.2017 WHICH HAS BEEN CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE WAS AFTER THE DATE OF PASSING OF THE ORDER. IN THE FIRST APPEAL, ASSESSEE HAS EXPLAINED THE ENTIRE SOURCE OF DEPOSITS OF RS. 35,30,500/- IN THE BANK ACCOUNT WITH ALL EVIDENCES AND ALSO POINTED OUT THAT IT IS AN EDUCATIONAL INSTITUTION AND THE FEES COLLECTED IN CASH FROM THE STUDENTS HAVE BEEN DEPOSITED, BUT THE SAME HAS BEEN REJECTED ON TECHNICAL GROUNDS. UNDER THESE CIRCUMSTANCES AND FACTS AND INTEREST OF JUSTICE, WE RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE AO TO EXAMINE ALL THE EVIDENCES; AND IF ASSESSEE IS ABLE TO SUBSTANTIATE THAT CASH DEPOSITS IN THE BANK ACCOUNT ARE FROM THE FEES RECEIVED FROM THE STUDENTS BEING AN EDUCATIONAL INSTITUTION, THEN AO SHOULD ACCEPT THE SAME. LD. AO SHOULD ENSURE THAT NOTICE IS SERVED PROPERLY TO THE ASSESSEE AND ASSESSEE SHOULD MAKE ALL EFFORTS TO FILE ALL SUCH EVIDENCES TO SUBSTANTIATE ITS CASE. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2018. SD/- SD/- (L.P. SAHU) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29/10/2018 4 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI