M/s. Om Prakash Sharma Educational & Charitable Trust, Modinagar V. Addl. CIT, Ghaziabad

ITA 4061/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6551 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 12-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 18-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Charitable institution; Opportunity of being heard; Additional evidence
• Section: 80G; 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 4061/DEL/2016 ASSESSMENT YEAR: 2010-11 M/S OM PRAKASH SHARMA VS. ADDL. CIT, RANGE-2 EDUCATIONAL & CHARITABLE TRUST, GHAZIABAD HOUSE NO. 1, LANE-2, SHYAM VIHAR, MODINAGAR (GHAZIABAD) UP. (PAN: AAAT02201M) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. K. SAMPATH, ADV. REVENUE BY : SH. RAKESH KUMAR, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 29.3.2016 PASSED BY THE LD.CIT(A), MUZAFFRNAGAR REL ATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE FOLLOWIN G ACTIONS OF THE AO: 1. MAKING AN ADDITION OF RS. 1,95,000/- BY MISTREATING THE REGULAR DONATIONS RECEIVED AS ANONYMOUS DONATION; 2 2. MAKING AN ADDITION OF RS. 8,50,000/- ON ACCOUNT OF UNSECURED LOAN TREATING THE SAME AS UNEXPLAINED; 3. NOT ALLOWING DEDUCTION U/S. 11 OF THE INCOME TAX ACT, 1961 (THE ACT) OF WRONG INVOKING THE PROVISION OF SECTION 13(1) OF THE ACT. ALL THE ABOVE ACTIONS BEING ARBITRARY, ERRONEOUS, MISCONCEIVED AND UNJUST MUST BE QUASHED WITH DIRECT IONS FOR RELIEF. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE WITH REGARD GROUND NO. 2 RELATING TO ADDITION OF RS. 8,5 0,000/- HAS STATED THAT HE IS NOT PRESSING THIS GROUND. HOWEVER, WIT H REGARD TO GROUND NO. 1 LD. COUNSEL OF THE ASSESSEE HAS STATED THAT THE AO HAS MISTREATED THE REGULAR DONATIONS RECEIVED AS ANONYM OUS DONATION AND WITH REGARD TO GROUND NO. 3 HE STATED THAT AO WRO NGLY NOT ALLOWED THE DEDUCTION U/S. 11 OF THE I.T. ACT, 1961 INVOKIN G THE PROVISION OF SECTION 13(1)(C) OF THE I.T. ACT. IN THIS BEHALF, HE FILED A PAPER BOOK CONTAINING PAGES 1 TO 141 HAVING THE COPY OF THE W RITTEN SUBMISSIONS FILED BEFORE THE CIT(A); APPLICATION UNDER RULE 46 A TO SUBMIT ADDITIONAL EVIDENCE TO CIT(A); WRITTEN SUBMISSIONS FILED BEFORE CIT(A); 3 COPY OF TRUST DEED; COPY OF 12A CERTIFICATE; COPY O F ITR, AUDIT REPORT, BALANCE SHEET, PROFIT AND LOSS ACCOUNT ETC; DETAIL S OF FIXED ASSETS; DETAILS OF CAR PAYMENT MADE AND RC OF OTHER CAR OWN ED BY THE TRUSTEE; COPY OF 80G CERTIFICATE; LIST OF DONORS; C OPY OF CONFIRMATION, ITR, PAN ID PROOF OF ALL DONORS. IN VIEW OF THE ABO VE, HE REQUESTED THAT WITH REGARD TO GROUND 1 & 3, THE LOWER AUTHORI TIES HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS AND THE DOCUMENT S ATTACHED WITH THE PAPER BOOK AS MENTIONED HEREINABOVE, WHICH NEED S TO BE CONSIDERED AT THE LEVEL OF THE AO IN THE INTEREST O F JUSTICE. HENCE, HE REQUESTED THAT THE ISSUES INVOLVED GROUND NO. 1 & 3 MAY BE SET ASIDE TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE CONTRARY, LD. DR OPPOSED THE REQUEST OF T HE LD. COUNSEL OF THE ASSESSEE AND RELIED UPON THE ORDERS OF THE A UTHORITIES BELOW. . 5. I HEARD BOTH THE PARTIES AND PERUSED THE RECORDS . I HAVE GONE THROUGH THE ORDER PASSED BY THE REVENUE AUTHORITIES , PAPER BOOK FILED BY THE ASSESSEE. I FIND THAT DURING THE HEARING, L D. COUNSEL OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 2 RELATING TO ADDITION OF RS. 8,50,000/-, HENCE, THE SAME IS DISMISSED AS SUC H. I FURTHER FIND THAT WITH REGARD TO GROUND NO. 1, IT WAS THE CONTEN TION OF THE LD. COUNSEL OF THE ASSESSEE THAT THE AO HAS MISTREATED THE REGULAR DONATIONS RECEIVED AS ANONYMOUS DONATION AND WITH R EGARD TO GROUND 4 NO. 3 IT WAS THE FURTHER CONTENTION THAT AO HAS W RONGLY NOT ALLOWED THE DEDUCTION U/S. 11 OF THE I.T. ACT, 1961 INVOKIN G THE PROVISION OF SECTION 13(1)(C) OF THE I.T. ACT. I NOTE THAT DURIN G THE HEARING, LD. COUNSEL OF THE ASSESSEE HAS FILED A PAPER BOOK CONT AINING PAGES 1 TO 141 HAVING THE COPY OF THE WRITTEN SUBMISSIONS FIL ED BEFORE THE CIT(A); APPLICATION UNDER RULE 46A TO SUBMIT ADDIT IONAL EVIDENCE TO CIT(A); WRITTEN SUBMISSIONS FILED BEFORE CIT(A); CO PY OF TRUST DEED; COPY OF 12A CERTIFICATE; COPY OF ITR, AUDIT REPORT, BALANCE SHEET, PROFIT AND LOSS ACCOUNT ETC; DETAILS OF FIXED ASSE TS; DETAILS OF CAR PAYMENT MADE AND RC OF OTHER CAR OWNED BY THE TRUST EE; COPY OF 80G CERTIFICATE; LIST OF DONORS; COPY OF CONFIRMATION, ITR, PAN ID PROOF OF ALL DONORS. HOWEVER, IN MY CONSIDERED OPINION, THE LOWE R AUTHORITIES HAS NOT CONSIDERED THE DOCUMENTS ATTACHED IN THE SHAPE OF PAPER BOOK WHICH ARE VERY ESSENTIAL TO BE EXAMINED FOR THE ADJ UDICATION OF THE ISSUES INVOLVED IN GROUND NO. 1 & 3. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE, I AM OF THE VIEW THAT IN THIS CASE THE ISSUES INVOLVED I N GROUND NO. 1 & 3 REQUIRES FRESH ADJUDICATION AT THE LEVEL OF THE AO, HENCE, THE ISSUES IN DISPUTE ARE SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. 5 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/02/2017 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 17/02/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 6