ITO, Ward-2(2), Bhubaneswar, Bhubaneswar V. Kunjabinodini Charitable Trust, Bhubaneswar

ITA 415/CTK/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3777 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Charitable institution; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAV AN KUMAR GADALE, JUDICIAL MEMBER ITA NO.415/CTK/2013 ASSESSMENT YEAR : 2009 - 2010 ITO, WARD 2(2), BHUBANESWAR. VS. KUNJABINODINI CHARITABLE TRUST, A/173, SAHID NAGAR, BHUBANESWAR. PAN/GIR NO. AABTK 4144 Q (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 22 /05/ 2017 DATE OF PRONOUNCEMENT : 26 /05/ 2017 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - II, BHUBANESWAR , DATED 30.3.2013 , FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.39,60,558/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED ADVANCE TO CONTRACTORS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE A DDITION OF RS. 10,43,953/ - MADE BY THE AO ON ACCOUNT OF DONATION. 2 ITA NO.415/CTK/2013 ASSESSMENT YEAR :2009 - 2010 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN ACCEPTING THE CONTENTIONS OF THE ASSESSEE AND NOT ACCEPTING THE FINDINGS OF THE AO IN VIOLATION OF RULE 46A OF THE IT RULES. 3. NOTICE OF HEARING WAS SENT TO THE RESPONDENT - ASSESSEE BY SPEED POST ON 9.5.2017 FIXING THE DATE OF HEARING ON 22.5.2017. NONE WAS PRESENT FOR THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING AND NEITHER ANY ADJOURNMENT WAS FILED. THE SAID NOTICE HAS NOT BEEN RETURNED BACK BY THE POSTAL AUTHORITIES UNSERVED. EARLIER, THE CASE WAS FIXED FOR HEARING ON 24.4.2014 WHEN THE SAME WAS ADJOURNED TO 21.5.2015 AT THE REQUEST OF LD A.R. OF THE ASSESSEE. ON THE SAID DATE, AGAIN THE HEA RIN G WAS ADJOURNED TO 12.1.2016, WHEN T HE APPEAL WAS ADJOURNED SINE DINE AS NONE APPEARED ON BEHALF OF THE ASSESSEE. THE CASE WAS FIXED FOR HEARING ON 1.8.2016 AND THE SAME WAS ADJOURNED TO 31.8.2016 AT THE REQUEST OF LD A.R. OF THE ASSESSEE AS A LAST OPP ORTUNITY. KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE BENCH PROCEEDED TO HEAR THE APPEAL AND DECIDE THE SAME CONSIDERING THE SUBMISSION OF LD D.R. 4. LD D.R. ARGUING THE GROUND NO.3 OF THE APPEAL SUBMITTED THAT THE CIT(A) HAS DELETE D THE ADDITION OF RS.39,60,558/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED ADVANCE TO CONTRACTORS AND ADDITION OF RS.10,43,95A3/ - ON ACCOUNT OF DONATION BY CONSIDERING ADDITIONAL EVIDENCES WHICH WERE SUBMITTED TO THE ASSESSING OFFICER FOR HIS REPORT AND THE APPEAL WAS DECIDED WITHOUT WAITING FOR THE REMAND REPORT OF THE ASSESSING OFFICER. THUS, THERE WAS VIOLATION OF RULE 46A OF ITAT RULES, 3 ITA NO.415/CTK/2013 ASSESSMENT YEAR :2009 - 2010 1962. HE, THEREFORE, PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR READJUD I CATING THE SAME AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCE S FILED BEFORE THE CIT(A) BY THE ASSESSEE. 5. AFTER CONSIDERING THE SUBMISSIONS OF LD D.R. WE ARE OF THE CONSIDERED OPINION THAT THE CIT(A) HAD CALLED FOR A REMAND REPORT O N 29.11. 2012 AND FIXED A PERIOD OF 30 DAYS FOR THE SAME. THE REPORT WAS NOT RECEIVED AND A REMINDER WAS SENT ON 22.3.2013 GRANTING TIME OF 7 DAYS TO THE ASSESSING OFFICER FOR SUBMITTING HIS REMAND REPORT. THE CIT(A) HAS NOT TAKEN ANY STEP BETWEEN 29.11.2012 TO 2 1.3.2013 FOR CALLING OF THE REMAND REPORT FROM THE ASSESSING OFFICER BY SENDING HIM A REMINDER. WE FIND THAT ON 22.3.2013, SUDDENLY, HE ALLOWED 7 DAYS TIME TO THE ASSESSING OFFICER AND WITHOUT RECEIVING THE REMAND REPORT FROM THE ASSESSING OFFICER, ADJUD ICATED THE ISSUE INVOLVED IN THE APPEAL IN FAVOUR OF THE ASSESSEE BY CONSIDERING THE ADDITIONAL EVIDENCE S . IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE, THE MATTER SH OULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WHICH WERE NOT FILED BEFORE THE ASSESSING OFFICER BUT WERE FILED AT THE TIME OF APPELLATE PROCEEDINGS AND CONSIDERING THE SAME THE CIT (A) DELETED THE ADDITION. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND REMAND BACK THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATING THE ISSUES 4 ITA NO.415/CTK/2013 ASSESSMENT YEAR :2009 - 2010 AFRESH AFTER CONSIDERIN G THE ADDITIONAL EVIDENCES AND AFFORDING A REASONABLE OPPORTUNITY O F HEARING TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL F ILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /05/2017 IN THE PRESENCE OF PARTIES. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 26 /05/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : ITO, WARD 2(2), BHUBANESWAR. 2. THE RESPONDENT. KUNJABINODINI CHARITABLE TRUST, A/173, SAHID NAGAR, BHUBANESWAR. 3. THE CIT(A) - II, BHUBANESWAR 4. PR.CIT , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY// 5 ITA NO.415/CTK/2013 ASSESSMENT YEAR :2009 - 2010 DATE INITIAL 1. DRAFT DICTATED ON 22 /05/17 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 22 /05/17 (DICTATION PAD HAS BEEN ENCLOSED ALONG WITH ORIGINAL FILE) SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE ON WHICH FILE GOES TO THE SPS 10. DATE OF DISPATCH OF ORDER.