Mass Education, Kolkata V. Additional DIT, Exemption - II, Kolkata , Kolkata

ITA 399/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8907 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S HALDER SRDR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Revision of order; Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.398-399/KOL/2018 ASSESSMENT YEARS: 2007-08 & 2009-10 MASS EDUCATION C/O MAHAMAYATALA, P.O. GARIA, KOLKATA-700 084 [ PAN NO.AAATM 5399 L ] / V/S . ADDL. DIRECTOR OF INCOME TAX, EXEMPTION-II, 10 B MIDDLETON ROW, KOLKATA /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI MIRAJ D SHAH, ADVOCATE ! /BY REVENUE SHRI S. HALDER, SR-DR /DATE OF HEARING 19-12-2018 /DATE OF PRONOUNCEMENT 26-12-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YEAR(S ) 2007-08 & 2009-10 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-JA LPAIGURIS COMMON ORDER DATED 23.06.2014 PASSED IN CASE NO.398/CIT(A)/XIV/2009-10 & 823/CIT(A)/XIV/2011-12, INVOLVING PROCEEDINGS 144 R.W.S 11 OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT. 2. WE COME TO ASSESSEES PLEADINGS FIRST. IT RAISES TWO SUBSTANTIVE GROUNDS IN FORMER ASSESSMENT YEAR 2007-08 A ITA NO.398/KOL/201 8. ITS FIRST PLEA IS THAT THE CIT(A)S ORDER HAS DISMISSING ITS LOWER APPEAL WITH OUT ANY DETAILED ADJUDICATION AND ITA NO.398-399/KOL/2018 A.YS 07-08 & 09-10 MASS EDUCATION VS ADDL. DCIT (EX)-II, K OL. PAGE 2 IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. IT TH EN SEEKS TO DELETE SURPLUS INCOME ADDITION OF 68,42,433/- ON MERITS. COMING TO LATTER ASSESSMENT YEAR 2009-10 INVOLVING ITA NO. 399/KOL/2018, WE FIND THAT ASSESSEE HAS FIRST OF ALL RAISED A TEC HNICAL GROUND THAT THE CIT(A) HAD NOT AFFORDED IT ADEQUATE OPPORTUNITY OF HEARING DURING LOWER APPELLATE PROCEEDINGS. IT THEN CHALLENGES VARIOUS ADDITION(S) AMOUNTING TO 1,04,19,114/- , 1,67,815/-, 67,30,947/-, 30,58,295/-, 28,28,477/- AND 21,67,727/-; RESPECTIVELY UNDER VARIOUS HEADS OF GARBAGE LIFTING MAINTENANCE CHARGES, SURPLUS PROFIT AND RENTAL INCOME ETC. ON MERITS. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. IT EMERGES FIRST OF ALL FROM A COMBINED PERUSAL OF THESE TWO C ASES THAT THE CIT(A)S ORDER UNDER CHALLENGE DULY RECOGNIZES THE FACT OF THE ASSESSEE HAVING FILED WRITTEN ARGUMENTS / SUBMISSIONS DURING THE COURSE OF LOWER APPELLATE PR OCEEDINGS. THE CIT(A)S ORDER UNDER CHALLENGE IN PARA 2 SENT THE SAID WRITTEN SUB MISSIONS TO THE ASSESSING OFFICER FOR HIS COMMENTS. THE LOWER APPELLATE ORDER THEREAF TER HAS GONE SILENT AS TO IN WHAT MANNER THE ASSESSING OFFICER SUBMITTED HIS REMAND R EPORT. ALL THESE FACTS HAVE GONE UNREBUTTED FROM REVENUE SIDE BEFORE US. THERE IS NO ADJUDICATION CONTEMPLATED U/S. 250(6) OF THE ACT REQUIRING POINTS OF ADJUDICATION FOLLOWED BY DETAILED DISCUSSION IN THE CIT(A)S ORDER. WE THEREFORE FIND MERIT IN ASSE SSEES FORMER IDENTICAL TECHNICAL GROUND (SUPRA) THAT THE LOWER APPELLATE ORDER FORMI NG PART OF SUBJECT-MATTER OF THESE APPEALS IN THESE TWO CASES IS NOT LIABLE TO BE SUST AINED. 4. NEXT EQUALLY IMPORTANT KEY QUESTION IS THAT ASSE SSING OFFICER HAD ALSO PASSED HIS ASSESSMENT ORDER(S) EX PARTE IN BEST JUDGMENT A SSESSMENTS. HE ASSESSED ASSESSEES RECEIPTS (SUPRA) TO BE INCOME OF THE TWO IMPUGNED A SSESSMENT YEARS. WE ARE INFORMED DURING THE COURSE OF HEARING THAT THE ASSESSING OFF ICER HAD PASSED SIMILAR ORDERS IN ASSESSMENT YEARS 2011-12 AND 2012-13 AS WELL IN SEC . 144 ASSESSMENTS. THE ASSESSEE FILED U/S 264 REVISION PETITIONS BEFORE CIT WHO RES TORED THE ISSUES BACK TO THE ASSESSING OFFICER ON 10.12.2015 AND 22.09.2016 RESP ECTIVELY. THE SAID REVISION ORDERS FORM PART OF RECORD BEFORE US. THE ASSESSING OFFICER ALSO APPEARS TO HAVE ITA NO.398-399/KOL/2018 A.YS 07-08 & 09-10 MASS EDUCATION VS ADDL. DCIT (EX)-II, K OL. PAGE 3 FRAMED CONSEQUENTIAL ASSESSMENTS IN COMPLIANCE THER EOF. WE THEREFORE RESTORE ALL ISSUES RAISED IN THESE TWO ASSESSEES APPEAL(S) BAC K TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION ON MERITS AFTER AFFORDING ADEQUATE OPP ORTUNITY OF HEARING. IT IS MADE CLEAR THAT THE ASSESSEE SHALL BE LIBERTY TO FILE ALL DETA ILED EVIDENCE IN CONSEQUENTIAL PROCEEDINGS. 5. THESE TWO ASSESSEES APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 26/12/2018 SD/- SD/- ( !) () !) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS * - 26/12/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-MASS EDUCATION, C/O MAHAMAYATALA, P.O. GA RIA KOLKATA-84 2. ! /REVENUE-ADIT(EX)-II, 10B, MIDDLETON ROW, KOLKATA 3. - . / CONCERNED CIT 4. . - / CIT (A) 5. / ))- , - /DR, ITAT, KOLKATA 6. 3 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ / -,