BAL SADHANA VIDHYALAIYA SANSTHAN, GUDHA GOR JI JHUNJHUNU V. ITO, EXEMPTION WD-1, JAIPUR

ITA 402/JPR/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0644 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-09-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 02-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 10; 154; 139(5); 119(2)(b); 143(1)

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 402/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2018-19 Bal Sadhana Vidhyalaiya Sansthan Todi Bhodki Road Todi, Gudha Gor Ji Jhunjhunu cuke Vs. Income Tax Officer Exemption-1 Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAAAB 7788 H vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Smt Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 19/10/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 17/04/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2018-19 which in turn arise from the order dated 19.08.2019 passed under section 154 of the Income Tax Act, by AO. 2 ITA No. 402/JP/2023 Bal Sadhana Vidhyalaiya Sansthan vs. ITO 2. In this appeal, the assessee has raised following grounds: - “1. That the Ld. CIT Appeal has grossly erred in not considering the grounds of appeal and rejected the appeal on the bogus and the filthy grounds without going into the merits of the case. 2. That the Ld. CIT was not justified in disallowing the claim of Rs. 936079/- under section 10 (23C)(vi) of the Income tax Act, knowing the fact that assessee is running solely education institute.” 3. Succinctly, the fact as culled out from the records is that the assessee filed his income tax return for assessment year 2018-19 in form ITR-7 on 13.09.2018 claiming exemption u/s 10(23C)(vi) for its income of Rs. 9,36,079/- from education activities, solely for charitable purpose by filling in ITR-7. Sr. No. 10 showing as “Amount eligible for exemption under any clause of section 10 (other than those at 8 and 9)” as filled in past years also but CPC denied the claim and raised a demand of Rs. 3,40,107/- through intimation u/s 143(1) of Income Tax Act. 3.1 The assessee than filed rectification request on 19.08.2019 stating that claim of exemption has been filled in ITR in Sr. No. 10 instead of Sr. No. 3 is typographical error, when filling the original return but rectification request has been rejected by the CPC by its order dated 20.08.2019 without giving opportunity to be heard stating that no fresh claim in the return shall be made in rectification request. 3 ITA No. 402/JP/2023 Bal Sadhana Vidhyalaiya Sansthan vs. ITO 4. Aggrieved from the order of the CPC, assessee preferred an appeal before the ld. CIT(A). A propose to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “5.3 It can be inferred from the above provisions that if the grounds of appeal of the appellant are entertained, then that would be amounting to accepting a new claim of the appellant and would also amount to altering the original return of income filed by the appellant voluntarily and the taxes paid voluntarily as per the original return of income. This would result in revising the return of income through the back door. The CIT(A) does not have the powers to revise the return. The CBDT can consider providing relief to the tax payers u/s 119(2)(b) of the Act if required, after the statutory time limit of filing the revised return has passed. But CBDT also can not issue any directions to the CIT(Appeals) in this regard, as expressly stated in the provisions of section 119(2)(b). Further, u/s 139(5) of the Act, only the taxpayer can revise the return within the statutory time limit. Therefore, the grounds of appeal of the appellant are considered but rejected and dismissed. 6. After considering the provisions of law, facts and circumstances of the case, the grounds of appeal of the appellant are not found sustainable as the rectification sought by the appellant is not the rectification of a mistake apparent from the records, within the confines of the provisions of section 154 of the Income Tax Act, 1961 and the related jurisprudence as has been enunciated by the Hon. Constitutional Courts. Hence, the grounds of appeal of the appellant are considered and dismissed.” 5. As the assessee aggrieved from the order of ld. CIT(A) filed the present appeal as per grounds raised in para 2. The assessee has neither submitted and reply nor attended hearing. 6. Per contra, the ld. DR appearing on behalf of the revenue heavily relied upon the orders of lower authorities and submitted that the present appeal has no merits and therefore, require to be dismissed. 4 ITA No. 402/JP/2023 Bal Sadhana Vidhyalaiya Sansthan vs. ITO 7. We have heard the rival contentions and perused the material placed on record. The bench noted that the issue in this case is that the assessee filed rectification request on 19.08.2019 stating that claim of exemption has been filled in ITR in Sr. No. 10 instead of Sr. No. 3 is typographical error, when filling the original return but rectification request has been rejected by the CPC by its order dated 20.08.2019 without giving opportunity to be heard stating that no fresh claim in the return shall be made in rectification request. 8. The ld. CIT(A) has also not given the finding that why the rectification application is not maintainable, and we note from the file of CPC passed an order without granting opportunity of hearing to the assessee. Therefore, considering the overall fact presented before us we are of the considered view that the assessee is in support of the claim u/s. 154 of the Act submitted before lower authorities that there are not claiming any fresh claim. The assessee was never confronted by the AO/CPC that whether the claim of the assessee is fresh claim or is in pursuance of the return filed. Looking to this aspect of the case, we are of the considered view that the assessee should be given a fair chance to represent the merits of the issue on hand and jurisdictional AO should grant an opportunity of being heard to 5 ITA No. 402/JP/2023 Bal Sadhana Vidhyalaiya Sansthan vs. ITO the assessee and passed the consequential order in accordance with law after hearing to the assessee as the grievance of the assessee that before passing the order u/s 154 of the Act, they have not given a chance of being heard. In the light of this facts and circumstances of the case, we set aside the issue to the file of the ld.AO and direct the ld. AO decide the issue on merit after giving the reasonable opportunity of being heard to the assessee. At the same time, the assessee is directed to represent and present all the facts before the ld. AO and should not ask for adjournment of trivial grounds. At this stage, we remand back the matter without commenting upon the merits of the case and ld. AO is directed to pass appropriate order in accordance with law. In the result the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 19/10/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 19/10/2023 6 ITA No. 402/JP/2023 Bal Sadhana Vidhyalaiya Sansthan vs. ITO *Ganesh Kumar, PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Bal Sadhana Vidhyalaiya Sansthan, Jhunjhunu 2. izR;FkhZ@ The Respondent- ITO, Exemption-1, Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 402/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar