LEARNING TREE EDUCATIONAL SOCIETY, VPO SINGHEWALA V. ITO EXEMPTION, AMRITSAR

ITA 328/ASR/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1804 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-04-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 19-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 12AA; 143(1); 250; 10(23C)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER I.T.A. No.328/Asr/2023 Assessment Year: 2022-23 Learning Tree Educational Society, VPO Singhewala Tehsil Malout Distt. Muktsar, Punjab. [PAN:-AAAAL3905A] (Appellant) Vs. ITO-(Exemption), Chandigarh. (Respondent) Appellant by Sh. Sanjay Kumar Singla, Adv. Respondent by Sh. Rajiv Wadhera, Sr. DR Date of Hearing 29.04.2024 Date of Pronouncement 05.06.2024 ORDER Per: Udayan Dasgupta, JM: This appeal is preferred against the order of the JCIT(A) – 12, Mumbai, passed u/s 250 of the Act 61, dated 15/09/2023, which has arisen out of the order of the CPC Bangalore passed u/s 143(1) of the Act 61. 2. The appeal of the assessee was filed belated by 86 days. The assessee filed a condonation petition. The order passed u/s 250 was not served on e-mail to the assessee nor hard copy was received by the assessee. It came to assessee’s I.T.A. No.328/Asr/2023 Assessment Year: 2016-17 2 knowledge when notice u/s 221 (1) was served on the assessee. The ld. DR had not made any objection for condonation of delay. Considering the explanation of the assessee, the delay of 86 days is condoned. 3. The assessee has taken the following grounds: - “1. The Ld. Commissioner of Income Tax (Appeals)- NFAC, erred in dismissing the appeal filed by the appellant without exercising best judgement. That the dismissal of appeal is against the principles of natural justice because reasonable opportunity of being heard was not given by the Worthy CIT(A) 2. That on the law, facts and circumstances of the case, Worthy CIT(A) has erred in confirming the action of Ld. AO in making addition of Rs.48,62,460/- without considering the document available with Assessing Officer.” 4. Brief fact of the case is that the assessee is an Educational Society and is running an Educational Institute at Village Singhewala Tehsil Malout District Muktsar. The Society is registered under Societies Registrations Act 1860. The society is also registered u/s 12AA of the Act 1961 vide order no CIT/BTI/ITO(T)/2011-12/3717 22.03.2012 Commissioner of Income Tax Bathinda. During the course of assessment proceedings, part compliance has been made by the assessee where some papers and documents ledger sheet and enclosure has been filed in support of the return of income, declaring total income at Rs. Nil. However, the assessee failed to furnish reply against final show cause I.T.A. No.328/Asr/2023 Assessment Year: 2016-17 3 notice issued by the AO and as per the AO ‘s observation the details regarding claim u/s 10(23C) of the Act 1961 was not filed. In absence of proper explanation from the assessee, huge expenses claimed by the assessee in its final accounts has been disallowed and eventually the assessment was completed on a total income of Rs.48,62,460/-. 5. The matter was carried in appeal before the ld. CIT(A), and in course of proceedings before the CIT(A) there has not been any compliance, and the ld. CIT(A) observed that notice of hearing has been issued on 4 separate occasions but there was no compliance on the part of the assessee and as such the ex parte order has been passed by the ld. CIT(A) sustaining the addition made by the AO. 6. Being aggrieved assessee filed an appeal before us. 7. The ld. AR of the assessee has submitted a written submission and paper book which is kept on the record. He argued and pointed out that in Memorandum of Appeal the E-mail ID has been provided specifically for service of notice of hearing in column No. 17 of Form 35, but no notice from the office of the ld. CIT(A) has been issued in the said E-mail ID. The contention of the ld. AR is as follows: “Against the order passed u/s 143(3) assessee filed appeal with CIT(A) 09.01.2019. Counsel of the assessee mentioned email id. address [e-mail] on form no. 35 but all notices of hearing u/s 250 sent by the income tax department on I.T.A. No.328/Asr/2023 Assessment Year: 2016-17 4 [e-mail] which was pertain to previous CA who left the firm. Therefore, intimation of hearing not reach to the assessee on e-mail address mention on form no. 35 in time. Copy of form 35 enclosed at page no. 7 & 8 of paper-book. During the appellant proceedings, no written submissions has been submitted: therefore, appeal of the assessee is dismissed. Order passed u/s 250 also rot served to the assessee on email address mentioned on form no. 35 or manually.” 8. The ld. DR relied on the order of the ld. CIT(A). 9. We heard the rival submission of both the parties and we have considered the material available on record. We are of the considered view that reasonable opportunity has not been granted to the assessee for submission of his evidences, documents and proper opportunity of hearing by the ld. CIT(A) has also not been allowed. 9.1 The notices, as stated in the appellate order has been issued in the E-mail ID of the previous CA and no notices has been issued in the E-mail ID specifically provided in Form No. 35. On this issue, the jurisdictional High Court in the case of Munjal BCU Centre of Innovation And Entrepreneurship, Ludhiana, V/s. CIT (Exemption), Chandigarh date of order 04.03.2024 CWP No. 21028 of 2023 (O & M) Punjab & Haryana High Court, specifically stated that notices of hearing should be served as per provision of section 282 of the Act 1961. In this case, notice of hearing has not been issued/ served on the E-mail ID mentioned in the I.T.A. No.328/Asr/2023 Assessment Year: 2016-17 5 Memorandum of Appeal. Moreover, in this case, the appeal has not been decided on merits and which was not possible for the first appellate authority to do in absence of full documentary evidences available before him. Therefore, in the interest of justice, we remit the matter back to CIT(A) to consider the matter afresh after affording proper and reasonable opportunity of hearing to the appellant and to decide on all the issues contained in the memorandum of appeal on merits. Since the matter is set aside to the file of the ld. CIT(A), we are not taking up the ground no. 2 on the merits. 10. In the result, the appeal of the assessee bearing ITA No. 328/Asr/2023 is allowed for statistical purposes. Order pronounced in the open court on 05.06.2024 Sd/- Sd/- (Dr. M. L. Meena) (UDAYAN DASGUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order