Usha Foundation, New Delhi V. ACIT, New Delhi

ITA 4356/DEL/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6596 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 21-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 13-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REE N A PURI
• Assessee Lawyers: INDIRA BANSAL
• Keywords: Charitable institution; Opportunity of being heard
• Section: 68

Judgement Text

ITA NO. 4356/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4356/DEL/2009 A.Y. : 2001-02 USHA FOUNDATION, B-II/100, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, BADARPUR, NEW DELHI 110 044 (PAN : AAATU0868Q) VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-9, JHANDEWALA EXTN., NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SMT. IN DIRA BANSAL, CA DEPARTMENT BY : MS. REE N A PURI, C.I.T. (D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 03.9.2 009 PERTAINING TO ASSESSMENT YEAR 2001-02. 2. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING THE APPELLATE ORDER WITH OUT GIVING THE APPELLANT PROPER AND REASONABLE OPPORTUNITY OF HEAR ING AND FURNISHING DETAILS/DOCUMENTS ASKED FOR BY HIS PREDECESSOR. ITA NO. 4356/DEL/2009 2 3. THE ASSESSEE IN THIS CASE IS REGISTERED AS PUBLI C CHARITABLE TRUST. IT FILED ITS RETURN OF INCOME ON 29.10.2001 FOR D ECLARING TOTAL INCOME OF RUPEES NIL. DURING THE ORIGINAL ASSESSMENT PRO CEEDINGS U/S 143(3), ASSESSING OFFICER NOTED THAT THAT THE ASSE SSEE TRUST HAS SHOWN RECEIPT OF ` 4,80,19,990/- TOWARDS CORPUS DONATION. AFTER DETAILED DISCUSSION, ASSESSING OFFICER CAME TO THE CONCLUSI ON THAT THIS AMOUNT WAS NOT FOR THE PURPOSE OF CORPUS DONATION, IT WAS A CASE OF SIPHONING OF DONATION OF MONEY. ASSESSING OFFICER TREATED T HE RECEIPT OF DONATION AS INCOME OF THE ASSESSEE U/S 68 OF THE IT ACT. 4. ASSESSEE APPEALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND LD. COMMISSIONER OF INCOME TAX (APPEAL S) DISMISSED THE APPEAL. 5. THE MATTER WAS TAKEN UP BEFORE THE ITAT BY THE AS SESSEE. THE ITAT RESTORED THE MATTER BACK TO THE ASSESSING OFFIC ER. 6. PURSUANT TO THE ITATS ORDER ASSESSING OFFICER I SSUED NOTICES. ASSESSEE SUBMITTED THE DETAILED SUBMISSIONS. THE ASS ESSING OFFICER DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE. ACCORDING TO THE ASSESSING OFFICER, ASSESSEE HAS CLAIMED THE CORPUS DONATION RECEIVED HAS BEEN UTILIZED FOR THE REPAYMENT OF LOAN WHICH WA S UTILIZED FOR CONSTRUCTION OF BUILDING IN EARLIER YEARS. BUT TH E ASSESSEE HAS NEITHER ITA NO. 4356/DEL/2009 3 PRODUCED COMPLETE EVIDENCE OF INVESTMENT BEFORE HIM NOR HAD GIVEN ANY RECORD TO SHOW THAT IN THAT PARTICULAR YEAR, I T HAD NOT CLAIMED THE BENEFIT OF APPLICATION OF FUNDS TOWARDS ITS OBJECTS IN BOTH THE YEARS. ACCORDINGLY, ASSESSING OFFICER DID NOT GIVE THE BE NEFIT OF CORPUS DONATION FOR THE CHARITABLE PURPOSES WITHIN THE ME ANING OF SECTION 11(1)(A) OF THE INCOME TAX ACT, 1961. 7. ASSESSEE APPEALED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AGAINST THE ABOVE ORDER. LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT HIS PREDECESSOR WAS TRANSFERRE D AND HE TOOK OVER THE CHARGE AND ISSUED FRESH NOTICE ON 20.8.2009 TO GIVE ASSESSEE A FRESH OPPORTUNITY TO APPEAR ON 1.9.2009. THIS NOTIC E WAS ISSUED FOR SERVICE THROUGH SPEED POST ON 25.8.2009. NOBODY AP PEARED ON 1.9.2009. LD. COMMISSIONER OF INCOME TAX (APPEALS) PR OCEEDED TO UPHOLD THE ORDER OF THE ASSESSING OFFICER . 8. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 9. AT THE THRESHOLD, THE LD. COUNSEL OF THE ASSESSE E CONTENDED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT PRO VIDED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO SUBMIT THE CASE AND S UBMIT NECESSARY DOCUMENTARY EVIDENCE. ITA NO. 4356/DEL/2009 4 9.1 THE DEPARTMENT COULD NOT CONTROVERT THE FACT THA T THERE WAS NO EVIDENCE OF SERVICE OF NOTICE OF 25/8/2009 FOR GIVI NG NOTICE FOR APPEARING ON 1.9.2009. THUS, WE ARE INCLINED TO ACC EPT THE ASSESSEES CONTENTION THAT ADEQUATE OPPORTUNITY HAS NOT BEEN G IVEN TO THE ASSESSEE. HENCE, IN THE INTEREST OF JUSTICE, WE REMI T THIS ISSUE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER THE ISSUE AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/6/2011 UPO N CONCLUSION OF HEARING. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [A.D. JAIN] [A.D. JAIN] [A.D. JAIN] [A.D. JAIN] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 21/6/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES