The ITO, Ward-3(2), Visakhapatnam V. M/s Shreeramareddy Sanyasi Naidu Educational Society, Vizianagaram

ITA 354/VIZ/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1701 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Keywords: Reassessment proceedings; Set aside
• Section: 147; 148; 144

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.354 /VIZAG/2008 ASSESSMENT YEAR: 2005-06 ITO WARD-3(2), VISAKHAPATNAM VS. SHREERAMAREDDY SANYASI NAIDU EDUCATIONAL SOCIETY, VIZIANAGARAM (APPELLANT) (RESPONDENT) PAN NO. AAABS 455 K APPELLANT BY: SHRI B. JAYA KUMAR, DR RESPONDENT BY: SHRI NONE ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 9.05.08 PASSED BY THE LD CIT (A)-I VISAKHAPATNAM AND IT RELATES TO THE ASSESSMENT YEAR 2005-06. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, THOUGH THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HENCE WE PROCEED TO DECIDE TH E APPEAL EX-PARTE, QUA THE ASSESSEE. 3. THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER PASSED U/S 144 R.W.S. 147 OF THE ACT HAVING BEEN DELETED BY TH E LD CIT (A), THE REVENUE IS IN APPEAL BEFORE US. 4. THE FACTS ARE STATED IN BRIEF. THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETIES ACT WITH THE OBJECT OF IMPARTING EDUCATIO N WITHOUT ANY PROFIT MOTIVE. FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSEE FILED ITS RET URN OF INCOME DECLARING A TOTAL PAGE 2 OF 3 LOSS OF RS.12,631/-, WHICH WAS PROCESSED U/S 143 (1 ). SUBSEQUENTLY THE AO REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 O F THE ACT. THOUGH THE AO POSTED THE CASE FOR HEARING ON SEVERAL OCCASIONS, THE ASSE SSEE NEITHER FURNISHED THE DETAILS NOR PRODUCED THE BOOKS OF ACCOUNTS. THE AO HAS NARR ATED THE DETAILS OF DATES OF HEARING AND THE RESPONSE OF THE ASSESSEE IN THE ASS ESSMENT ORDER. HENCE THE AO COMPLETED THE ASSESSMENT U/S 144 OF THE ACT BY DETE RMINING THE TOTAL INCOME AT RS.31,29,420/-. IN THE APPEAL PREFERRED BY THE ASSES SEE, LD CIT (A) DELETED THE ADDITIONS FOR THE REASON THAT THE INCOME OF THE ASS ESSEE SOCIETY IS EXEMPT U/S 10(23C) (III AD) OF THE ACT. AGGRIEVED BY THE ORDE R OF THE LD CIT(A), THE REVENUE IS IN APPEAL BEFORE US BY RAISING THE FOLLOWING EFFECT IVE GROUNDS: 2). THE HONBLE CIT (A) IS NOT JUSTIFIED IN ALLOWI NG THE APPEAL WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSING OFFICER BEFORE WHOM, INSPITE OF A GOOD NUMBER OF OPPORTUNITY ISSUED, THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE AND DID NOT COMPLY TO THE NOTI CES. 3) THE HONBLE CIT (A) IS NOT JUSTIFIED IN IGNORING THE FACT THE LAW OF RES-JUDICATA IS NOT APPLICABLE TO THE INCOME TAX PR OVISIONS AND THE ASSESSING OFFICERS ACTION OF ACCEPTING THE ASSESSE ES RETURNS OF I COME OF THE EARLIER ASSIGNMENT YEARS HAS NOTHING TO DO WITH THE PRESENT ASSESSMENT AND THE LD CIT (A) OUGHT TO HAVE APPRECIATED THE FACT. 5. WE HAVE HEARD THE LD DR IN THIS REGARD. WE NOTIC E FROM THE ASSESSMENT ORDER THAT THE AO HAS GIVEN AS MANY AS 19 OPPORTUNITIES T O THE ASSESSEE. DESPITE THE REPEATED OPPORTUNITIES SO GIVEN, THE ASSESSEE DID N OT EXTEND COOPERATION AND DID NOT PRODUCE THE BOOKS OF ACCOUNTS AND EXPLANATION CALLE D FOR. THOUGH THE LD CIT (A) HAS DELETED THE ADDITIONS WITH THE OBSERVATIONS THAT TH E INCOME OF THE ASSESSEE SOCIETY IS EXEMPTED U/S 10(23C) (III AD) OF THE ACT, THE QUEST ION WHETHER THE SAID SECTION IS APPLICABLE TO THE ASSESSEE OR NOT FOR THE YEAR UNDE R CONSIDERATION NEEDS TO BE VERIFIED BY THE AO. AS CONTENDED BY THE REVENUE, T HE OPINION OF THE AO ON THE SAID CLAIM OF THE ASSESSEE WAS NOT SOUGHT FOR BY LD CIT( A). IN THE REASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FAILED TO SUBSTANTIAT E ITS ELIGIBILITY FOR THE SAID EXEMPTION. HENCE, IN THE INTEREST OF NATURAL JUSTI CE, WE ARE OF THE OPINION THAT THE PAGE 3 OF 3 ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO EX PLAIN ITS CASE BEFORE THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE O RDER OF THE LD CIT (A) AND RESTORE THE MATER TO THE FILE OF THE AO. THE ASSESSEE IS D IRECTED TO COOPERATE WITH THE AO, FILE THE NECESSARY EXPLANATIONS AND PRODUCE THE BOO KS OF ACCOUNTS AND OTHER DOCUMENTS CALLED FOR BY THE AO IN THIS REGARD. IN CASE OF FAILURE ON THE PART OF THE ASSESSEE TO COOPERATE WITH THE DEPARTMENT, THE ASSE SSING OFFICER IS FREE TO PASS SUCH ORDER AS HE THINKS FIT IN ACCORDANCE WITH THE LAW. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS TREAT ED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 21-10-2009 SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 21 ST OCTOBER, 2009. COPY TO 1 THE ITO WARD-3(2) O/O ADDITIONAL CIT, R-3, VISAKH APATNAM 2 M/S SHREERAMAREDDY SANYASI NAIDU EDUCATIONAL SOCI ETY, D.NO.4-41/A, GAJAPATHI NAGARAM, VIZIANAGARAM 3 THE CIT VISAKHAPATNAM 4 THE CIT(A)-I, VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM