Agarwal Vikas Mandal, Vadodara V. The ITO, Exemption, Vadodara

ITA 39/AHD/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4845 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 29-11-2023
• Assessment Year: 2020-2021
• Appeal Filed On: 18-01-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 12; 11; 139; 12A; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER I .T .A . N o . 3 9 /A hd / 2 0 23 ( A s se ss m e nt Y e a r : 20 20- 21 ) A g a rw a l V ik as M a n da l , C - 12, R u t ur aj S oc ie t y, N r . K as tu r a b a N a g ar , N e w Sa ma R o a d, V ad od a r a-39 00 0 8 Vs .I nc o me Ta x O f f ic er ( E xe mp ti on ) , V a do da r a [ P A N N o. AA C T A3 40 4 C ] (Appellant) .. (Respondent) Appellant by : Shri Hemant Suthar, A.R. Respondent by : Shri Ravindra, Sr. D.R. D a t e of H ea r i ng 30.11.2023 D a t e of P r o no u n ce me nt 01.12.2023 O R D E R The appeal filed by the assessee is against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre (in short “NFAC”), Delhi on 28.10.2022 for A.Y. 2020-21. 2. The grounds of appeal raised by the assessee are as under: “1. The Ld. CIT (Appeals), National Faceless Appeal Centre (NFAC) has erred in law and in facts in dismissing the appeal ex-parte without affording reasonable opportunity of being heard and for want of prosecution. The appeal of the appellant may kindly be restored to the file of the Ld. CIT (Appeals), NFAC, and may please be directed to afford reasonable opportunity of being heard. 2. The Ld. CIT (Appeals), NFAC even in deciding the appeal and dismissing it ex-parte ought to have dealt with the merits of the issues involved and decided the appeal on merits by a speaking order observing the principles of natural justice. The order of the Ld. CIT (Appeals), NFAC may please be set aside. 3. Without prejudice to the above, the Ld. CIT (Appeals), NFAC ought to have allowed the expenses incurred even when the income of the appellant is assessed without giving the effect of the provisions of Sec. 11 & 12 of the Act. 4. The Ld. CIT(A), NFAC ought to have considered and held that the benefit of the provisions of Sec. 11 & 12 of Act cannot be denied where the return of income is filed within ITA No. 39/Ahd/2023 Agarwal Vikas Mandal vs. ITO(E) Asst.Year–2020-21 - 2 - the time allowed u/s. 139. Since the return of income for the year is filed on 20.03.2021, the same is to be treated as return filed u/s. 139 and the benefit of the application of the provisions of Sec. 11 & 12 of the Act may please be directed to be allowed. 5. The Ld. CIT(A), NFAC has further erred in law and in facts in not following the binding circular nos. no. 2/2018 (F. No. 370142/15/2017-TPL) dated 15-02-2018 and circular F. NO. 173/193/2019-ITA-I, dated 23-4-2019 issued in this regard. 6. Your appellant craves liberty to add, alter, amend, substitute or withdraw any of the ground(s) of appeal hereinabove contended.” 4. The assessee is a charitable trust and registered under Section 12A of the Income Tax Act, 1961 on 12.12.2008. The assessee trust filed its return of income for A.Y. 2020-21 on 20.02.2021 declaring the total income of Rs. 19,322/- after giving effect to under Section 11 of the Act. The return of income was processed under Section 143(1)(a) of the Act and income was assessed at Rs. 16,49,712/- excluding the provisions of Sections 11 and 12 of the Act thereby stating that the return of income was filed belatedly and not before the due date i.e. 15.02.2021 under Section 139(1) of the Act. The CPC Bengaluru has passed intimation order under Section 143(1)(a) of the Act where a demand of Rs. 3,92,530/- including interest was raised. 5. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) dismiss the appeal of the assessee. 6. The Ld. A.R. submitted that Circular of the CBDT dated 23.04.2019 clearly set out that the delay should be condoned in such cases. The Ld. A.R. further submitted that the Tribunal in case of Conference of Religious India vs. Ward Exemption 1(3), New Delhi (ITA No. 2161/Del/2022 A.Y. 2020-21 order dated 13.10.2022) has directed the CIT(E) to consider the return of assessee and allow the benefit as per the provisions of law in light of the delay in filing return of income. The Ld. A.R. submitted that the issue contested herein is identical to the decision of the Tribunal. ITA No. 39/Ahd/2023 Agarwal Vikas Mandal vs. ITO(E) Asst.Year–2020-21 - 3 - 7. The Ld. D.R. relied upon the assessment order as well as the order of the CIT(E). 8. Heard both the parties and perused all the relevant material available on record. There is delay of 23 days in filing present appeal for which the assessee filed application for condonation of delay. The delay appears to be genuine, hence delay is condoned. Since the due date of filing the return was 15.02.2021 comes during the pandemic period and the assessee filed the return of income on 20.03.2021 which is just 14 days in light of the Circular dated 23.04.2019 issued by the CBDT. It will be appropriate to direct the CIT(E) to consider the return of the assessee filed under Section 139 and allow the benefit as per the provisions of law. Needless to say, the assessee be given opportunity of hearing by following principle of natural justice. 9. In result, the appeal of the assessee is partly allowed for statistical purpose. This Order pronounced in Open Court on 01/12/2023 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad; Dated 01/12/2023 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/ Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad