Delhi Nursing Council, New Delhi V. ITO (E), New Delhi

ITA 3393/DEL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81551 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 30-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARWINDER KAUR
• Assessee Lawyers: MRS RUCHIKA JAIN
• Keywords: Depreciation; Corroborative evidences
• Section: 12A; 144

Judgement Text

ITA NOS. 3388 TO 3393/DEL/2011 ASSTT. YEAR:2003-04 TO 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 3388, 3389, 3390, 3391, 3392, 3393/DEL/2011 ASSESSMENT YEARS : 2003-04 TO 2008-09 DELHI NURSING COUNCIL, VS INCOME TAX OFFICER (E), AB COLLEGE OF NURSING BUILDING, TR UST WARD-III, LOK NAYAK HOSPITAL, NEW DELHI-110092 NEW DELHI-110002 (PAN: AAAD2239H) (APPELLANT) (RESPONDENT) APPELLAN T BY: MRS. RUCHIKA JAIN RESPONDENT BY : SMT. PARW INDER KAUR, SR.DR O R D E R PER BENCH THESE APPEALS HAVE BEEN OREFERRED BY THE APPELLAN T AGAINST THE CONSOLIDATED ORDER OF CIT(A)-XXI, NEW DELHI DATED 2 7.4.2011 IN APPEAL NO. 52,53,54,55, 56 & 57/10-11 FOR AYS 2003-04 TO 2 008-09 RESPECTIVELY. THE APPELLANT ASSESSEE HAS RAISED SIMILAR GROUNDS I N ALL ABOVE CAPTIONED APPEALS WHEREIN EXCEPT AMOUNT, THE ALLEGATIONS AND CONTENTS OF GROUND NO. 1 ARE SAME WHICH READ AS UNDER:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDERS PASSED BY THE LD. A.O. ASSESSING INCOME AMOUNTING TO -------- IN THE HANDS OF THE ASSESSEE ARE INJUDICIOUS AND BAD AT LAW AS THE SURPLUS GENERATED BY ITA NOS. 3388 TO 3393/DEL/2011 ASSTT. YEAR:2003-04 TO 2008-09 2 THE COUNCIL IN THIS CASE IS NOT INCOME LIABLE TO TA X UNDER THE INCOME TAX ACT, 1961. 2. THE LD. ASSESSING AUTHORITY HAS GROSSLY ERRED IN PASSING ASSESSMENT ORDERS AND ASSESSING THE SURPLUS IN THE HANDS OF THE ASSESSEE AS INCOME UNDER THE INCOM E TAX ACT, 1961 IGNORING THE PRINCIPAL OF MUTUALITY. 2. BRIEFLY STATED THE FACTS GIVING RISE TO THESE AP PEALS ARE THAT THE AO OBSERVED THAT THE APPELLANT ASSESSEE WAS GRANTED RE GISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) W.E.F. AY 2009-10. IN PARA 9 OF THE ASSESSMENT ORDER DATED 20.8.2010 FOR AY 2003-04 , THE AO OBSERVED THAT THE ASSESSEE APPELLANT WAS NOT GRANTED REGISTRATION U/S 12A OF THE ACT AS PER RECORD OF THE DEPARTMENT. THE AO FURTHER HELD THAT THE ASSESSEE APPELLANT DID NOT RESPOND OR COMPLY WITH THE NOTICE U/S 142(1 ) OF THE ACT. THEREFORE, THE AO INVOKED THE PROVISIONS OF SECTION 144 AND CO MPLETED THE ASSESSMENT PROCEEDINGS IN ALL SIX ASSESSMENT YEARS EX PARTE BY CONSIDERING SURPLUS AMOUNT AS PER AUDITED ACCOUNTS AND CAPITAL EXPENDIT URE MINUS DEPRECIATION AS INCOME OF THE APPELLANT ASSESSEE. 3. BEING AGGRIEVED BY THE ABOVE ASSESSMENT ORDERS, THE ASSESSEE PREFERRED AN APPEAL WHICH WAS ALSO DISMISSED BY PAS SING IMPUGNED CONSOLIDATED ORDER FOR ALL SIX YEARS. NOW, THE EMP TY HANDED APPELLANT ASSESSEE IS BEFORE THIS TRIBUNAL WITH SIMILAR GROUN DS IN ALL SIX APPEALS AS REPRODUCED HEREINABOVE. ITA NOS. 3388 TO 3393/DEL/2011 ASSTT. YEAR:2003-04 TO 2008-09 3 4. WE HAVE HEARD ARGUMENTS OF BOTH THE PARTIES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. LD. AR REITERA TED SUBMISSIONS OF THE APPELLANT BEFORE THE CIT(A) AND SUBMITTED THAT THE ASSESSEE WAS NOT GRANTED DUE OPPORTUNITY OF HEARING BY THE AO AND THE ASSESS MENT PROCEEDINGS WERE COMPLETED EX PARTE U/S 144 OF THE ACT WITHOUT CONSIDERING PROBABLE SUBMISSIONS AND DEFENSE OF THE ASSESSEE. THE AR FU RTHER CONTENDED THAT THE CIT(A) ALSO DISMISSED APPEALS OF THE ASSESSEE BY PA SSING A CRYPTIC AND SHORT ORDER WITHOUT ASSIGNING ANY REASON FOR UPHOLDING TH E ASSESSMENT ORDERS. THE AR ALSO POINTED OUT THAT THE EXPLANATION OF THE ASSESSEE ABOUT MUTUALITY AND OTHER RELEVANT CONTENTIONS AND SUBMISSIONS WERE ALSO NOT CONSIDERED BY THE CIT(A) AND CIT(A) PASSED IMPUGNED ORDER IN A SL IPSHOD AND CASUAL MANNER WHICH DOES NOT ADJUDICATE ENTIRE CONTENTION AND SUBMISSION OF THE ASSESSEE ON ALL ISSUES AND GROUNDS OF CONTROVERSY R AISED BEFORE THE CIT(A) BY THE ASSESSEE APPELLANT. LD. DR RESPONDED THAT I F IT IS FOUND JUST AND PROPER, THEN THE REVENUE HAS NO SERIOUS OBJECTION I F THE ENTIRE CONTROVERSY IS RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATI ON. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS AN D CAREFUL PERUSAL OF RELEVANT MATERIAL PLACED ON RECORD, INTER ALIA ASSE SSMENT ORDERS AND THE IMPUGNED ORDER, WE CLEARLY OBSERVE THAT THE AO COMP LETED ASSESSMENT ON THE BACK OF THE ASSESSEE EX PARTE WITHOUT AFFORDING DUE OPPORTUNITY OF ITA NOS. 3388 TO 3393/DEL/2011 ASSTT. YEAR:2003-04 TO 2008-09 4 HEARING FOR THE ASSESSEE. FROM BARE READING OF IMP UGNED ORDER OF THE FIRST APPELLATE AUTHORITY I.E. CIT(A), WE ALSO OBSERVE TH AT THE CIT(A) HAS PASSED A SLIPSHOD AND CRYPTIC ORDER WITHOUT GIVING ANY COGEN T AND REASONABLE FINDING ON THE CONTENTIONS AND SUBMISSIONS OF THE ASSESSEE SPECIALLY ON THE GROUND OF MUTUALITY. WE ALSO OBSERVE THAT THE CIT(A) HAS ALSO NOT GIVEN ANY FINDING ON THE SUBMISSIONS AND EVIDENCE FILED BEFOR E HIM BY THE ASSESSEE APPELLANT. THEREFORE, WE ARE OF THE CONSIDERED OPI NION THAT THE ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY OF HEARING AND HIS CONTENTIONS, SUBMISSIONS AND SUPPORTING EVIDENCE AND DOCUMENTS SHOULD BE EXA MINED AND VERIFIED AT THE END OF AO. IN VIEW OF ABOVE, IMPUGNED ORDER AS WELL AS ASSESSMENT ORDERS ARE SET ASIDE AND THE ISSUE OF ASSESSMENT ON ALL COUNTS IS RESTORED TO THE FILE OF AO WITH THE DIRECTION THAT THE AO SHALL PASS A SPEAKING ASSESSMENT ORDER FOR ALL SIX YEARS BY AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE AND WITHOUT BEING PREJUDICED WITH THE EARLIER OBSERVATIONS AND FINDINGS IN THE ASSESSMENT ORDERS AND IN THE ORDER OF CIT(A). ACCORDINGLY, BOTH THE ISSUES IN ALL SIX APPEALS ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ALL SIX APPEALS OF THE ASSESSEE A RE ALLOWED AS INDICATED ABOVE. ITA NOS. 3388 TO 3393/DEL/2011 ASSTT. YEAR:2003-04 TO 2008-09 5 ORDER PRONOUNCED IN THE OPEN COURT ON 8.8.2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 8 TH AUGUST 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR