Shri Youdhister Kumar Memorial Trust, Bareilly V. Commissioner of Income Tax (Exemption), Lucknow

ITA 42/LKW/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0223 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 19-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K BAR
• Assessee Lawyers: J K YADAV
• Keywords: Principle of natural justice; Set aside
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 42/LKW/2018 ASSESSMENT YEAR: N.A. SHRI YOUDHISTHER KUMAR MEMORIAL TRUST A - 715, RAJENDRA NAGAR IZZAT NAGAR BAREILLY V. CIT (EXEMPTION) LUCKNOW T AN /PAN : AAOTS6377C (APP ELL A NT) (RESPONDENT) APP ELL ANT BY: SHRI J.K. YADAV, ADVOCATE RESPONDENT BY: SHRI A. K. BAR, CIT (DR) DATE OF HEARING: 01 11 201 8 DATE OF PRONOUNCEMENT: 02 11 20 1 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF LD. COMMISSIONER OF INCOME - TAX (EXEMPTION), LUCKNOW DATED 21/11/2017 AS PER FOLLOWING GROUNDS OF APPEAL: - 1. BECAUSE, ON THE FACTS AND IN T HE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (EXEMPTION) IS NOT JUSTIFIED IN REJECTING THE APPLICATION FILED BY THE ASSESSEE U/S 12AA OF THE INCOME TAX ACT, AS NO DUE AND PROPER OPPORTUNITY OF HEARING WAS AFFORDED BEFORE THE PASSING OF THE IMPUGNED ORDER. 2. BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(EXEMPTION) HAS MADE CONTRADICTORY STATEMENTS IN THE IMPUGNED ORDER WITH RESPECT TO THE AVAILABILITY OF DOCUMENTARY EVIDENCE REQUIRED FOR THE FULFILMENT OF R EGISTRATION REQUIREMENTS AS PER SECTION 12AA (1)(P). THE ENTIRE MATERIAL, RELEVANT FOR TAKING A DECISION IN THE MATTER IS ALREADY ON RECORD AND HENCE THE LD. ITA NO.42/LKW/2018 PAGE 2 OF 4 CIT (EXEMPTION) IS NOT JUSTIFIED IN REJECTING THE APPLICATION OF THE ASSESSEE. 3. BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER IS UN - SUSTAINABLE IN LAW AS THE ENTIRE EVIDENCE AND MATERIAL CONCERNING THE ACTIVITIES OF THE ASSESSEE WAS DULY FILED BY THE ASSESSEE BEFORE THE CIT (EXEMPTION), WHICH HAS BEEN CASUALLY IGNORE D BY THE SAME HENCE THE ORDER PASSED DESERVES TO BE SET ASIDE. 4. BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE JUDGMENT CITED IN THE IMPUGNED ORDER ARE NOT APPLICABLE FOR DECIDING THE INSTANT CONTROVERSY. 5. THE HUMBLE ASSESSEE, CRAVES FOR LEAVE TO ADD/AMEND ANY OTHER GROUND WITH THE PRIOR PERMISSION OF THE HON'BLE TRIBUNAL. 2 . THE CRUX OF THE GRIEVANCE OF THE ASSESSEE IS REJECTION OF APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT BY THE CIT (EXEMPTION), LUCKNOW. AT THE TIME O F HEARING, LD. A.R. OF THE ASSESSEE APPRISED THE BENCH WITH REGARD TO THE GROUNDS OF APPEAL RAISED BEFORE THE TRIBUNAL AND THE VERY FIRST GROUND IS THAT PROPER OPPORTUNITY WAS NOT PROVIDED BY THE CIT (EXEMPTION) TO PRESENT ASSESSEES CASE AND APPLICATION F OR REGISTRATION UNDER SECTION 12AA OF THE ACT WAS DISMISSED SUMMARILY, WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. IN VIEW OF THIS, LD. A.R. OF THE ASSESSEE INVITED OUR ATTENTION TO PARA 2 OF THE ORDER OF CIT (EXEMPTION). 3 . THE LD. CIT ( D.R. ) , ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF CIT (EXEMPTION), LUCKNOW. 4 . WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS AND A CAREFUL PERUSAL OF PARA 2 OF THE ORDER OF CIT (EXEMPTION), LUCKNOW SHOWS THAT FIRST OPPORTUNITY WAS PROVIDED TO T HE ASSESSEE CALLING FOR SPECIFIC QUERIES REGARDING APPLICATION FOR REGISTRATION ITA NO.42/LKW/2018 PAGE 3 OF 4 UNDER SECTION 12A FOR COMPLIANCE ON 9/11/2017. ON THAT DATE I.E. 9/11/2017 LD. A.R. OF THE ASSESSEE APPEARED AND SOUGHT ADJOURNMENT FOR 14/11/2017. ON THAT DATE I.E. 14/11/20 17 ANOTHER APPLICATION FOR ADJOURNMENT WAS MOVED BY ASSESSEE - APPLICANT AND THE DATE OF HEARING WAS REFIXED ON 21/11/2017. NO BOOKS OF ACCOUNT OR VOUCHERS COULD BE PRODUCED BY THE APPLICANT - ASSESSEE AND ON THAT DATE ITSELF I.E. 21/11/2017 CIT (EXEMPTION), LUCKNOW PASSED ORDER REJECTING APPLICATION FOR REGISTRATION UNDER SECTION 12AA OF THE ACT. IT IS EVIDENT FROM RECORD THAT SUFFICIENT OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE BY CIT (EXEMPTION), LUCKOW. IT IS A CASE WHERE APPLICANT - ASSESSEE HAD SOUGHT FOR REGISTRATION UNDER SECTION 12AA OF THE ACT AND ENTIRE PARAMETERS , INCLUDING FACTS AND CIRCUMSTANCES WHETHER SUCH REGISTRATION CAN BE GRANTED OR NOT , REQUIRES PROPER OPPORTUNITY WHICH SHOULD BE PROVIDED TO THE ASSESSEE TO SUPPORT ITS CASE THOUGH VARIOU S DOCUMENTARY EVIDENCES. HERE ONLY THREE DATES HAVE BEEN PROVIDED FOR HEARING AND ON THIRD OCCASION ORDER WAS PASSED BY CIT (EXEMPTION) . IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE DESERVES PROPER HEARING BEFORE CIT (EXEMPT ION), THEREFORE, WE SET ASIDE THE ORDER OF CIT (EXEMPTION) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02 / 11 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 ND NOVEMBER , 201 8 JJ: 0111 ITA NO.42/LKW/2018 PAGE 4 OF 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASS ISTANT REGISTRAR