RAMDEOBABA CHARITABLE SOCIETY, Akola V. I.T.O.WARD-3, Akola

ITA 295/NAG/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1303 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Charitable institution; Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 143(3); 234B

Judgement Text

1 ITA NO. 295/NAG/2015. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER.. I.T.A.NO.295/NAG/2015 ASSESSMENT YEAR : 2011 - 12. RAMDEOBABA CHARITABLE SOCIETY, THE INCOME - TAX OFFICER, AKOLA. VS. WARD - 3, AKOLA. PAN AACTS5406L. APP ELLANT. RESPONDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 21 - 11 - 2016 DATE OF PRONOUNCEMEN T : 24 TH NOV.., 2016 O R D E R. PER RAM LAL NEGI, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 16 - 09 - 2015 PASSED BY THE CIT(APPEALS) - I, NAGPUR WHEREBY THE LEARNED CIT(APPEALS) DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A CHARITABLE TRUST, REGISTERED UNDER BOMBAY PUBLIC TRUST ACT, 1950, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010 - 11 DECLARING THE TOTAL INCOME OF RS.1,99,040/ - . THE RETURN WAS PROCESSED AND ASSESSMENT ORDER U/S 143(3) OF THE ACT WAS PASSED BY THE AO DETERMINING THE TOTAL INCOME OF RS.1,49,18,650/ - AFTER MAKING DISALLOWANCE OF RS.99,75,000/ - AND RS.47,44, 608/ - U/S 40(A)(IA) OF THE ACT. 3. FEELING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LEARNED CIT(APPEALS). HOWEVER, THE ASSESSEE FAILED TO APPEAR 2 ITA NO. 295/NAG/2015. BEFORE THE LEARNED CIT(APPEALS). CONSEQUENTLY, THE LEARNED CIT(APPEALS ) DISMISSED THE APPEAL ON THE GROUND THAT THE ASSESSEE IS NO MORE INTERESTED IN PROSECUTING ITS APPEAL. 4. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL: 1. THE NOTICES ISSUED FOR HEARING OF AP PEAL WERE NOT SERVED ON ASSESSEE AND THUS ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FOR NOT ATTENDING ON THE DATES OF HEARING BEFORE HONBLE CIT(A). 2. THE ORDER PASSED BY THE LD. AO U/S 143(3) OF I.T. ACT, 1961 IS INVALID, ILLEGAL AND BAD IN LAW AND HONBLE CIT(A) ERRED IN CONFIRMING THE SAME. 3. THE HONBLE CIT(A) ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE AND NOT ON MERITS. 4. THE ADDITIONS MADE BY A.O. AT RS. 99,75,000/ - AND RS.47,44,498/ - U/S 40(A)(IA) OF I.T. ACT 1961 ARE UNJUSTIFIED, UNWARRANTED AND EXCESSIVE AND HONBLE CIT(A) ERRED IN CONFIRMING THE SAME WITHOUT CONSIDERING THE MERITS OF THE CASE. 5. THE ASSESSEE DENIES LIABILITY TO PAY INTEREST UNDER SECTION 234A, 234B AND 234C OF I.T. ACT 1961. WITHOUT PREJUDICE, INTE REST CHARGED UNDER SECTION 234A, 234B AND 234C IS ILLEGAL, INVALID AND EXCESSIVE. 5. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER IS BAD IN LAW AS THE SAME HAS BEEN PASSED IN VIOLATION OF PRINCIPLE OF NATURAL JUSTI CE. THE ASSESSEE COULD NOT APPEAR BEFORE THE LEARNED CIT(APPEALS) ON THE DATES FIXED FOR HEARINGS AS THE NOTICES ISSUED WERE NOT SERVED ON THE ASSESSEE, THEREFORE, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FOR NOT ATTENDING ON THE DATES OF HEARING BEFORE HIM. HENCE, THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEAR 3 ITA NO. 295/NAG/2015. BEFORE THE LEARNED CIT(APPEALS) DESPITE SUFFICIENT OPPORTUNITY GRANTED TO HIM, THE ASSESSEE CANNOT TAKE THE PLEA THAT IMPUGNED ORDER IS BAD IN LAW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE MATERIAL ON RECORD. AS MENTIONED BY THE LEARNED CIT(APPEALS) THE CASE WAS FIXED FOR HEARING ON 21 ST JUNE, 2015 AND THEREAFTER NOTICES WERE ISSUED ON MORE THAN FIVE DATES POSTING THE CASE FOR HEARING FIVE TIMES, EVEN THEN THE ASSESSEE FAILED TO APPEAR BEFORE HIM. ACCORDINGLY, THE LEARNED CIT(APPEALS) RELYING ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN CIT VS. CHENIAPPA MUDALIAR, AIR 1969 SC 1068 , HONBLE JURISDICTIONAL HIGH COURT IN M/S CHEMIPOL VS. UNION OF INDIA & OTHERS IN CENTRAL EXCISE APPEAL NO. 62 OF 2009 AND THE DECISION RENDERED BY THE DELHI BENCH OF TRIBUNAL IN CIT VS. M/S MULTIPLAN INDIA PVT. LTD. (1991) 38 I TD 320 (DEL.), DISMISSED THE APPEAL FILED BY THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE CASE AND CONFIRMED THE ACTION OF THE AO. 7. ALTHOUGH THE LEARNED CIT(APPEAL S ) HAS MENTIONED IN THE ORDER THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM TO PURSUE H IS CASE DESPITE THE NOTICES ISSUED FOR MORE THAN FIVE OCCASIONS. HOWEVER, THE LEARNED CIT(APPEAL S ) HAS FURTHER MENTIONED THAT THE LAST TWO NOTICES SENT BY REGISTERED POST RETURNED UNDELIVERED WITH THE REMARKS THAT THE ADDRESSEE HAS LEFT. THIS FACT PRIMA FA CIE ESTABLISHES THAT THE NOTICE FOR THE LAST DATE OF HEARING, ON WHICH THE IMPUGNED ORDER WAS PASSED, WAS NOT SERVED ON THE ASSESSEE. THE FACT THAT ASSESSEE HAS PREFERRED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER NEGATES THE CONCLUSION OF THE LEARNED C IT(APPEAL S ) THAT THE ASSESSEE IS NO MORE INTERESTED IN PURSUING HIS CASE. THE PRINCIPLES OF NATURAL JUSTICE REQUIRE THAT PARTY MUST BE HEARD BEFORE PASSING AN ORDER ADVERSE TO HIM. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESS EE SHOULD GET AN OPPORTUNITY TO PRESENT HIS CASE BEFORE THE FIRST APPELLATE AUTHORITY IN THE INTEREST OF JUSTICE. THE CASES RELIED UPON BY THE LEARNED CIT(APPEAL S ) ARE DISTINGUISHABLE ON FACTS OF THE PRESENT CASE. 4 ITA NO. 295/NAG/2015. 7. IN VIEW OF THE FACTS OF THE CASE AND TH E CIRCUMSTANCES UNDER WHICH THE IMPUGNED ORDER HAS BEEN PASSED, WE CONSIDER IT PROPER TO SEND THE FILE BACK TO THE LEARNED CIT(APPEALS) FOR FRESH ADJUDICATION. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER, WITHOUT GOING TO THE MERITS OF THE CASE AND SEND T HIS APPEAL BACK TO THE LD. CIT(APPELS) FOR DE NOVO ADJUDICATION OF THE ISSUE RAISED BY THE APPELLANT/ASSESSEE ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT/ASSESSEE. WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LEARNED C IT(APPE A LS) AS AND WHEN REQUIRED TO DO SO AND NOT TO SEEK ADJOURNMENTS ON FRIVOLOUS GROUNDS. THE APPEAL IS DISPOSED OF ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N THIS 24 TH DAY OF NOV., 2016. SD/ - SD/ - ( SHAMIM YAHYA) (RAM LAL NEGI) ACOUNTANT MEMBER. JUDICIAL MEMBER. NAGPUR, DATED: 24 TH NOV. , 2016. COPY FORWARDED TO : 1. RAMDEOBABA CHRITABLE SOCIETY, CHAVAN BUILDING, LIC OFFICE ROAD, NEAR KALA MARUTI, RAM NAGAR, AKOLA 2. I.T.O., WARD - 3, AKOLA. 3. C.I.T. - I, NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.