AURUM FOUNDATION, MUMBAI V. ACIT(CPC), MUMBAI

ITA 4149/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2979 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Rectification of order; Opportunity of being heard; Maximum Marginal Rate; Non passing of speaking order; Benefit of exemption
• Section: 234B; 10B; 143(1); 201; 54; 154

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI PAWAN SINGH (JM) I.T.A. NO. 4149 /MUM/ 201 8 (ASSESSMENT YEAR 20 14 - 1 5 ) ARUM FOUNDATION LOMA I.T. PARK PLOT NO. GEN - 4/1 TTC INDUSTRIAL AREA THANE BELAPUR ROAD GHAN SOLI, NEXT TO CABOT INDIA LTD. NAVI MUMBAI - 400 701. PAN : AACTA5107C V S . ACIT (CPC) POST BAG NO. 2 ELECTRONIC CITY POST OFFICE BANGALORE - 560 100. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI HIRO RAI DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE O F HEARING 1.8 . 201 9 DATE OF PRONOUNCEMENT 19 . 8 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 28.3.2018 AND PERTAINS TO ASSESSMENT YEAR A.Y. 2014 - 15. 2. GROUNDS OF APPEAL READ AS UNDER : - 1 ) THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME CIT (APPEALS) - 1, MUMBAI (HEREINAFTER REFERRED TO AS 'THE CIT (APPEALS)' IS ILLEGAL AND INVALID. 2) THE LEARNED CIT (APPEALS) ERRED IN DISREGARDING THE CLAIM MADE BY THE ASSES SEE THAT THE ASSESSING OFFICER WAS WRONG IN MAKING ADJUSTMENTS WHICH ARE NOT PRIMA FACIE IN NATURE. 3) THE LEARNED CIT (APPEALS) ERRED IN IGNORING THE CLAIM MADE BY THE ASSESSEE THAT THE AMOUNTS AGGREGATING TO RS. 5,60,000 WERE DONATIONS TOWARDS CORPUS AN D NOT THE INCOME OF THE ASSESSEE. ARUM FOUNDATION 2 4) THE LEARNED CIT (APPEALS) ERRED IN IGNORING THE CLAIM MADE BY THE ASSESS E E THAT FORM NO. 10B WAS ELECTRONICALLY FILED ON NOV. 19, 2016 I.E. BEFORE THE FILING OF THE APPEAL BEFORE THE LEARNED CIT (APPEALS). 5) THE L EARNED CIT (APPEALS) ERRED IN UP H OLDING THE ORDER OF THE ASSESSING OFFICER TAXING THE ALLEGED INCOME OF RS. 5,95,961 OF THE ASSESSEE AT THE MAXIMUM MARGINAL RATE. 6) THE LEARNED ASSESSING OFFICER ERRED IN WRONGLY CALCULATING EDUCATION CESS INCLUDING SECO NDARY & HIGHER EDUCATION CESS AT RS. 5,364 INSTEAD OF RS. NIL AS SHOWN IN THE RETURN OF INCOME. 7) THE LEARNED OFFICER ERRED IN WRONGLY CALCULATING THE INTEREST UNDER SECTIONS 23 4 A, 234B AND 234C OF THE ACT AT RS. 7,232, 43,392 AND RS. 6,689 RESPECTIVE LY INSTEAD OF RS. NIL, RS. NIL AND RS. NIL AS SHOWN IN THE RETURN OF INCOME. ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER. 3. BRIEF FACTS OF THE CASE CAN BE GAINFULLY APPRECIATED FROM THE ORDER OF LEARNED CIT(A) AS UNDER : - BRIEFLY THE FAC TS OF CASE ARE THAT THE APPELLANT HAS E - FILED ITS 01.01.2015 WITHOUT UPLOADING THE AUDIT REPORT IN FORM 10B. THE CPC VIDE ITS ORDER U/S 143(1) DATED 12.03.2016 DENIED THE EXEMPTION U/S . 11/12 OF THE IT ACT AGAINST THIS ORDER, THE APPELLANT HAD FILED AN APP LICATION U/S 154 OF THE ACT WITH CPC, BANGALORE ON 11 . 06.2016. THE CPC HAD REJECTED THE RECTIFICATION PETITION OF THE APPLICANT VIDE ITS ORDER 13.07.20 16 GIVING THE FOLLOWING REASONS : - 'PLEASE REFER TO THE RECTIFICATION REQUEST FILED BY YOU FOR THE ASSESSM ENT YEAR 2014 - 15 IN RESPECT OF ABOVE MENTIONED ORDER RECEIVED AT CENTRALIZED PROCESSING CENTER ON 11.06.2016. ON VERIFICATION, IT IS SEEN THAT THERE IS NO PRIMA FACIE ERROR IN THE ORDER WHICH YOU HAVE SOUGHT TO BE RECTIFIED. THEREFORE, YOUR APPLICATION FO R RECTIFICATION UNDER SEC.154 I S REJECTED, FOR THE FOLLOWING REASONS: AS SEEN FROM THE E - FILED RETURN OF INCOME FILED BY THE ASSESSEE, THE ASSESSES HAS CLAIMED EXEMPTION UNDER SECTION 11 BUT HAS NOT FURNISHED DETAILS OF AUDIT IN THE SCH. AUDIT INFORMATION AND AUDIT REPORT IN FORM 10B IS NOT E - F ILED.' AGGRIEVED BY THE REJECTION OF 154 APPLICATIONS BY CPC, THE APPELLANT HAS FILED THIS APPEAL. THE ASSESSEE HAD EARLIER PREFERRED AN APPEAL ON THE ARUM FOUNDATION 3 SUBSTANTIVE ORDER U/S 143(1) OF THE IT ACT PASSED BY CPC REJECTI NG EXEMPTION BENEFITS U/S 11/12 OF THE ACT. THE ASSESSEE HAD CONTENDED IN BOTH APPEALS THAT THE AUDIT REPORT IN FORM NO. 10 B COULD NOT BE UPLOADED DUE TO TECHNICAL GLITCHES, AND ALSO BECAUSE THE TRUST WAS NOT CONVERSANT WITH NEW UPLOADING SYSTEM. BUT HE HAD NOT PROVIDED ANY EVIDENCE OF HIS PROBLEMS NOR HE COULD FILE THE AUDIT REPORT IN FORM 10B MANUALLY BEFORE AO/IT AUTHORITIES DESPITE IT WAS READY ACCORDING TO HIS SUBMISSION. IN THIS BACKGROUND, THE ASSESSEE HAS FI L ED THE RECTIFICATION PETITION U/S 154 OF T HE ACT BEFORE CPC WHICH WAS REJECTED AND THE DENIAL OF EXEMPTION BENEFITS U/S 11/12 OF THE ACT CONTINUED AS DECIDED BY ORDER U/S 143(1) OF THE I.T. ACT B Y FURNISHING THE SAME SET OF FACTS AS SUBMITTED DURING APPEAL PROCEEDING AGAINST U/S 143(1) ORDER, THE ASSESSEE HAS REQUESTED TO CONSIDER HIS SUBMISSIONS FOR RELIEF WHILE DECIDING THE APPEAL . 4 . LEARNED CIT(A) HAS HE LD THAT HE CONSIDERED F ACTS OF THE C ASE AND SUBMISSION OF THE ASSESSEE. HE NOTED THAT I N THE APPEAL AGAINST ORDER U/S 143(1 ) OF THE ACT FOR T HE SAME AY LEARNED CIT(A) HA S DEALT WITH THE SUBST A NT I VE D EFAU L T ON THE PART OF THE, ASSESSEE AND HAS DISMISS ED THE APPEAL DUE TO FAILURE ON I TS PART TO COMPLY WITH STATUTORY REQUIREMENT . HE NOTED THAT T HE PRESENT APPEAL IS AGAINST THE RECTIFICATION ORDER U/S 1 54 OF THE ACT PASSED BY THE CPC ON 11 . 06 . 2016 ON THE SAME PROCESSING ORDER U/S 143(1) OF THE ACT, WITH THE SAME SET OF THE FACTS AND CIRCUMSTANCES FOR THE SAME ASSESSMENT YEAR. IN VIEW OF THE ABOVE, LEARNED CIT(A) HELD THAT HE WOULD LIKE TO CONTINUE W ITH HIS STAND AND DECL I NE TO INTERFERE WITH THE FINDINGS OF THE CPC ORDER U/S 154 OF THE IT ACT. ACCORDINGLY, ALL THE GROUNDS OF APPEALS WERE DISMISSED. 5 . AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 6 . WE NOTE THAT LEARNED CIT IN THIS CASE HAS DISMISSED THE ASSESSEE'S APPEAL BY INTER ALIA REFERRING TO HIS ORDER IN APPEAL FILED AGAINST ORDER PASSED UNDER SECTION 143(1) OF THE ACT. T HERE IS NO REFERENCE OF THE DETAIL OF HIS ADJUDICATION UNDER SECTION 143(1) OF THE ACT IN THIS ORDER. ARUM FOUNDATION 4 7 . LEARN ED COUNSEL OF THE ASSESSEE HAS PRAYED THAT THE ASSESSEE HAS NOT RECEIVED THE SAID ORDER OF THE LEARNED CIT (A) . LEARNED COUNSEL OF THE ASSESSEE FURTHER CONTENDED THAT DESPITE WRITING SEVERAL RTI APPLICATION HE HAS NOT BEEN ABLE TO OBTAIN THE SAID ORDER OF L EARNED CIT(A). 8 . WE HAVE HEARD BOTH THE COUN S EL AND PERUSED THE RECORDS. WE FIND TH AT THE ORDER BY THE LEARNED CIT (A) IS A LACONIC AND NON SPEAKING ORDER. IN THIS VIEW OF THE MATTER WE REMIT THE ISSUE TO THE FILE OF LEARNED CIT (A). LEARNED CIT (A) IS DIR ECTED TO CONSIDER THE ISSUE AFRESH AND PASS A PROPER AND SPEAKING ORDER. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD . 9 . IN THE RESULT APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 19 . 8 . 201 9 . SD/ - SD/ - (PAWAN SINGH) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 19 / 8 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI ARUM FOUNDATION 5