Pranjul Education & Marriage Trust, Kanpur V. Astt. Commissioner of Income Tax, Kanpur

ITA 300/LKW/2015

• Counselvise Citation: 30023714 RSA 2015
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUKHDEV SINGH
• Keywords: Gift; Opportunity of being heard; Maximum Marginal Rate

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.300/LKW/2015 ASSESSMENT YEAR:2003-04 PRANJUL EDUCATION & MARRIAGE TRUST KANPUR V. ACIT CIRCLE 1 KANPUR TAN/PAN:AAATT7363B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. SUKHDEV SINGH, C.A. RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 14 08 2015 DATE OF PRONOUNCEMENT: 21 08 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (APPEALS) ERRED IN PASSING AN EX-PARTE AND NON-SPEAKING ORDER WITHOUT CONSIDERING DETAILS/ INFORMATION/EXPLANATIONS/AFFIDAVIT/ EVIDENCES/ CONFIRMATIONS SUBMITTED BY THE APPELLANT BEFORE HIM , THEREFORE LIABLE TO BE SET ASIDE AND QUASHED. 2. THAT ON THE FACTS AND IN WE CIRCUMSTANCES OF THE CASE AND IN LAW THE 13. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING/ASSUMING THAT NOTICE U/S 143(2) WAS SERVED PERSONALLY ON 31/10/2004 ( SUNDAY) WITHOUT PUTTING ANY DOCUMENTARY EVIDENCE ON RECORD IN THIS REGARD, WHEREAS APPELLANT VERY PARTICULARLY DENIED SERVICE OF NOTICE ON :- 2 -: 31/10/2004 SINCE IT WAS SUNDAY AND OFFICE WAS CLOSED DUE TO SUNDAY IN USUAL COURSE, AND APPELLANT ALSO FILED AFFIDAVIT IN THIS REGARD, WHICH WAS NEITHER CONSIDERED BY LD. CIT (APPEALS) NOR CONTROVERTED BY THE DEPARTMENT, THEREFORE ORDER OF THE C.I.T. (APPEALS) AS WELL AS ASSESSMENT ORDER OF THE ASSESSING OFFICER IS NULL AND VOID AND LIABLE TO BE SET ASIDE AND QUASHED SOLELY ON THIS GROUND. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE L9. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED, IN CONFIRMING THE ADDITION OF RS.77,100/- NOT ONLY WITHOUT PASSING ANY SPEAKING / REASONED ORDER IN THIS REGARD BUT ALSO WITHOUT CONSIDERING THE REPLY/DETAILS/ EXPLANATIONS /EVIDENCES AND CONFIRMATIONS FILED BY APPELLANT BEFORE HIM, THEREFORE ORDER OF THE C.I.T. (APPEALS) AS WELL AS ASSESSMENT ORDER OF THE ASSESSING OFFICER IS LIABLE TO BE SET ASIDE AND QUASHED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD, COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.77,100/-, WHICH WAS THE BALANCE OF TRUST FUND DULY FILED BEFORE THE ASSESSING OFFICER, AS DETAILED BELOW :- - OPENING BALANCE AS ON 01/04/2002 : 52,100/- (THIS BALANCE WAS DULY SHOWN IN THE NOTE TO THE COMPUTATION OF INCOME FOR THE A.Y.2002-03 FILED WITH THE DEPTT. ON 27/07/2002) ( COPY ENCLOSED) -ADD : GIFTS FROM MRS. REKHA SHUKLA ( PAN : ANYPS3908C) : 25,000/- ( CONFIRMATION ENCLOSED) - CLOSING BALANCE AS ON 31/03/2013 : 77,100/- 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND :- 3 -: IN LAW THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.77,100/- , WHICH INCLUDED OPENING BALANCE OF TRUST FUND AMOUNTING TO RS.52,100/- WHICH IS NEITHER IN THE NATURE OF ANY INCOME NOR EVEN ANY CREDIT/RECEIPT RECEIVED BY THE APPELLANT DURING THE YEAR HENCE NOT TAXABLE UNDER THE PROVISIONS OF TAX ACT, TO BE SET ASIDE. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.77,000/-, WHICH INCLUDED GIFT RECEIVED FROM MRS. REKHA SHUKLA FOR RS.25,000/-, AUNT OF BENEFICIARY, WHO IS PAN HOLDER, I.T. ASSESSEE AND ALSO CONFIRMATION FILED BY HER, THEREFORE DULY AND EXPLAINED AND LIABLE TO BE SET ASIDE. ADDITIONAL GROUNDS BEFORE HONBLE TRIBUNAL 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. ASSESSING OFFICER ERRED IN CHARGING THE TAX OF MAXIMUM MARGINAL RATE WITHOUT ANY BASIS/REASON. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL IN FEW LINES WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. :- 4 -: 3. THE LD. D.R. HAS ALSO AGREED TO THIS SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 4. IN THE LIGHT OF THE AFORESAID ARGUMENTS, WE ARE OF THE VIEW THAT SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE- ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:21 ST AUGUST, 2015 JJ:1708 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR