M/s. Brain Society, BIKANER V. CIT, BIKANER

ITA 443/JODH/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7906 (ITAT-JODHPUR)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 22-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 12A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 443/JODH/2011 UNDER SECTION 12AA(1)(B)(II) OF THE I.T. ACT, 1961 PAN : AABTB 7913 L M/S. BRAIN SOCIETY VS. THE CIT 2-K-5, PAWAN PURI BIKANER NEAR NAGNECHI MANDI, BIKANER (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURESH OJHA RESPONDENT BY : SHRI A.K. KHANDELWAL DATE OF HEARING : 03.10.2012 DATE OF PRONOUNCEMENT : 03.10.2012 ORDER PER N.K.SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST TH E ORDER DATED 24.10.2011 OF THE CIT, BIKANER U/S 12AA(1)(B)(II) OF THE I.T. ACT, 1961 2.1 FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL. 1. THAT THE ORDER PASSED BY THE CIT, BIKANER IS ILLEGA L AND AGAINST THE LAW. 2. THAT THE CIT, BIKANER SHOULD NOT HAVE PASSED THE EX -PARTE ORDER BECAUSE THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM COM PLYING THE NOTICE UNDER REFERENCE. 3. THAT THE TIME ALLOWED BY THE CIT, BIKANER IS NOT RE ASONABLE EVEN LESS THAN ONE WEEK. 4. THAT THE ASSESSEE FULFILLS ALL THE CONDITIONS AS PR OVIDED IN THE ACT, THEREFORE, THE REGISTRATION REFUSED IS ILLEGAL AS WELL AS AGAI NST THE PRINCIPLE OF NATURAL JUSTICE. 2 2.2 FROM THE ABOVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST THE ACTION OF THE LD. CIT IN PASSING THE IMPUGNED ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE-SOCIETY. 2.3 THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASS ESSEE FURNISHED AN APPLICATION DATED 07-04-2011 FOR GRANTING REGISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) .THE LD. CIT DISMISSED THE APPLICATION BY OBSERVING THAT A REGISTERED LETTER DATED 03-10-2011 WAS SENT TO THE ASSESSEE SOCIETY FOR APPEARANCE ON 10-1 0-2011. ON THE SAME DATE, NOBODY WAS PRESENT. THEREFORE, THE APPLICATION OF THE ASSESSEE WAS REJE CTED. IT WAS ALSO OBSERVED THAT THE ASSESSEE SOCIETY WAS UNABLE TO FULFILL THE CONDITIONS MENTIO NED IN THE TRUST DEED. 2.4 NOW THE ASSESSEE IS IN APPEAL. 2.5 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PROPER OPPORTUNITY OF BEING HEARD WAS PROVIDED BY THE LD. CIT WHICH IS AGAINST THE PRINCI PLES OF NATURAL JUSTICE. HE REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE LD CIT TO BE DECIDED AFRESH AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2.6 THE LD. DR DID NOT OBJECT IF THE MATTER BE SENT BACK TO THE LD. CIT. 2.7 AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND THE MATERIALS AVAILABLE ON RECORD, IT APPEARS THAT THE LD. CIT DID NOT PROVIDE REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNH EARD AS PER MAXIM AUDI ALTERAM PARTEM. HOWEVER, IN THE PRESENT CASE, THE LD. CIT DECIDED T HE APPLICATION OF THE ASSESSEE EX-PARTE WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. MO REOVER, IT IS NOT CLEAR HOW AND IN WHAT MANNER, THE LD. CIT CAME TO THIS CONCLUSION THAT THE ASSESS EE FAILED TO FULFILL THE CONDITIONS MENTIONED IN TH E TRUST DEED WHEN A PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. WE THEREFORE, DEEM IT FIT AND PROPER TO REMAND THIS IS SUE BACK TO THE FILE OF THE LD CIT TO BE ADJUDICAT ED UPON AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD 3 TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO C OOPERATE WITH THE DEPARTMENT AND NOT TO SEEK UNWARRANTED AND UNREASONABLE ADJOURNMENTS. 3.0. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03- 10-2012 ) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 03 /10/ 2012 *MISHRA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR