Lakshay Manav Sewa Samiti, Sonepat V. CIT, Rohtak

ITA 4469/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69280 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-08-2013
• Assessment Year: misc
• Appeal Filed On: 21-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D: NEW DELHI) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER ITA NOS. 4469/DEL/ 2012& 4470/DEL/2012 (ASSESSMENT YEAR: BLOCK PERIOD) LAKSHAY MANAV SEWA SAMITI VS. CIT H. NO. 1533, SECTOR- 14, AAYAKAR BHAWAN, HOUSING BOARD COLONY OPP. MANSAROVAR PARK, SONEPAT DELHI ROAD AAAAL3438Q ROHTAK (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI D. K. MISHRA, CIT DR ORDER PER DIVA SINGH, JUDICIAL MEMBER: BOTH THESE APPEALS FILED BY THE ASSESSEE ARE BEING DECIDED BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AS IDENTICAL GRO UNDS HAVE BEEN RAISED THEREIN. WHEREAS ITA 4469/DEL/2012 IS AGAINST THE ORDER U/S 12AA (1) (6) (II) OF THE INCOME TAX DATED 15/6/2012 BY CIT, ROHTAK. ITA 4470/DEL/2 012 IS AGAISNT ORDER U/S 80(G) DATED 20 TH JUNE 2012 OF CIT ROHTAK. IN BOTH THE APPEALS IDEN TICAL GROUND HAS BEEN RAISED BY THE ASSESSEE. FOR READY REFERENCE WE REP RODUCE THE GROUNDS AGITATED IN ITA NO. 4469/DEL/2012, WHICH READ AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX ROHTAK U/S 12AA (1) (B) (II) OF THE INCOME TAX ACT 1961 IS ILLEGAL , ERRONEOUS, ITA NOS. 4469 &44 70/DEL/2012 2 UNJUST, ARBITRARY, BASED ON SURMISES AND CONJECTURE S, AGAINST PRINCIPLES OF NATURAL JUSTICE, BASED ON IRRELEVANT GROUNDS AND CONSIDERATIONS, FACTUALLY INCORRECT AND AGAINST THE PROVISIONS OF THE INCOME TAX ACT 1961 AND THUS IS BAD BOTH ON FAC TS AND IN LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX, ROHTAK, HAS ERRED ON FA CTS AND IN LAW IN REJECTING THE APPLICATION OF THE APPELLANT U /S 12AA (1) (B) (II) OF THE INCOME TAX ACT 1961. 3. THAT THE APPELLANT CRAVES LEAVE OF THE BENCH OF THE HONORABLE INCOME TAX APPELLATE TRIBUNAL TO ALTER, AMEND, MODI FY, ADD, DELETE, SUBSTITUTE ANY OF THE GROUNDS OF APPEALS AT ANY STAGE OF THE APPELLATE PROCEEDINGS. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE SOCIETY MOVED AN APPLICATION U/S 12A (1) (AA) IN FORM NO. 10A ON 20 TH JANUARY 2012, WHICH AS PER THE IMPUGNED ORDER WAS ACCOMPANIED BY A COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS OF SOCIETY, C OPY OF CERTIFICATE NO. SLP- 1476 OF 2009-10 ISSUED BY DISTRICT REGISTRAR OF FIR MS AND SOCIETIES, SONEPAT, HARYANA( ACT XXI 1860), COPY OF PAN AND LIST OF OFF ICE BEARERS OF THE SOCIETY AND INCOME AND EXPENDITURE AND BALANCE-SHEET FOR THE FI NANCIAL YEAR 2010-11. A PERUSAL OF THE IMPUGNED ORDER FURTHER SHOWS THAT CO MMISSIONER OF INCOME TAX, ROHTAK CALLED FOR A REPORT FROM THE ASSESSING OFFIC ER STATING AS TO WHETHER THE ASSESSEE SOCIETY FULFILLED THE CONDITIONS REQUIRED FOR THE GRANT OF REGISTRATION APPLIED FOR. A PERUSAL PARA-2 OF THE IMPUGNED ORDE R SHOWS THAT REPORT WAS RECEIVED THROUGH JOINT COMMISSIONER OF INCOME TAX, SONEPAT RANGE, SONEPAT VIDE HIS OFFICE LETTER F.NO-500 DATED 2/5/2012. PERUSIN G THE SAME THE COMMISSIONER OF INCOME TAX ROHTAK OBSERVED THAT:- THE ASSESSING OFFICER AS WELL AS THE JOINT CIT DI D NOT CLEARLY RECOMMENDED THE CASE FOR THE REGISTRATION AND LEFT THE MATTER T O BE DECIDED ON MERITS. (EMPHASIZE PROVIDED BY THE BENCH). ITA NOS. 4469 &44 70/DEL/2012 3 3. IN THE CIRCUMSTANCES THE CIT ROHTAK REQUIRED THE ASSESSEE TO BE PRESENT ON 14/5/2012. THE REQUEST AS PER THE IMPUGNED ORDER W AS COMMUNICATED BY THE REGISTERED POST. ON THE SAID DATE ADJOURNMENT WAS S OUGHT BY THE ASSESSEE AND THE CASE WAS ADJOURNED TO 28 TH MAY 2012 THEREAFTER IT WAS ADJOURNED TO 6 TH JUNE 2012. ACCORDINGLY THE CONCERNED OFFICER DECIDED THE ISSUE AGAINST THE ASSESSEE AND THE APPLICATION IN FORM NO. 10A WAS REJECTED. AGGRIEVE D THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. ON THE DATE OF HEARING, TIME WAS SOUGHT BY THE LD. AR ON THE GROUND THAT HE WAS SUFFERING FROM VIR AL AND BY THE DEPARTMENT ON THE GROUND THAT TIME WAS REQUIRED TO PREPARE. ACCO RDINGLY TIME WAS GRANTED. ON THE NEXT DATE OF HEARING ASSESSEE WAS REPRESENTED H OWEVER THE APPEAL WAS ADJOURNED ON THE DEPARTMENTS REQUEST. ON THE NEXT DATE OF HEARING THE ASSESSE REMAINED UNREPRESENTED AND THE DEPARTMENT WAS HEARD ON GROUND NO.1 WHEREIN THE ASSESSEE HAS AGITATED THAT THE ISSUE WAS DECIDE D BASED ON SURMISES AND CONJECTURES CONTRARY TO THE PRINCIPLES OF NATURAL J USTICE. ON EARLIER OCCASIONS WHILE GRANTING ADJOURNMENTS THE PARTIES HAVE BEEN REQUIRE D TO ADDRESS ONLY WHETHER THE CASE SHOULD BE RESTORED TO THE CIT ROHTAK, IN ORDER TO ENSURE THAT AN OPPORTUNITY OF BEING HEARD IS GRANTED. AS OBSERVED, HOWEVER, ON THE DATE OF HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. IN THE CIRCUMST ANCES IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE HEARING EX-PARTE QU A THE ASSESSEE APPELLANT ON MERIT AFTER HEARING THE CIT DR. THE LD. CIT. DR ST ATED THAT AS FAR AS THE PAPER BOOK FILED BY THE ASSESSEE IS CONCERNED SUFFICIENT EVIDENCES HAVE NOT BEEN PLACED ON RECORD WHICH IS THE DUTY AND RESPONSIBILITY OF T HE ASSESSEE, HOWEVER, SINCE THE ISSUE VIDE THE GROUND RAISED NATURAL JUSTICE HAS BE EN AGITATED BY THE ASSESSEE HE WOULD HAVE NO OBJECTION IF THE ISSUE IS RESTORED WI TH THE DIRECTION THAT ALL NECESSARY EVIDENCES BE PLACED BY THE ASSESSEE BEFORE THE CIT, ROHTAK SO THAT HE MAY DECIDE THE ISSUE. ACCORDINGLY, IN THE LIGHT OF THE MATERI AL AVAILABLE ON RECORD AND THE SUBMISSIONS ADVANCED WE DEEM IT APPROPRIATE TO REST ORE THE ISSUE BACK TO THE FILE OF ITA NOS. 4469 &44 70/DEL/2012 4 THE CIT, ROHTAK WITH THE DIRECTION TO DECIDE THE SA ME IN ACCORDANCE WITH LAW, BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO PLACE ALL NECES SARY EVIDENCES REQUIRED FOR ADJUDICATING THE ISSUE BEFORE THE CIT ROHTAK. IT I S HOPED THAT THE ASSESSEE UTILIZES THE OPPORTUNITY SO GRANTED BY RESPONSIBILY AND MEAN INGFULLY PARTICIPATING IN LETTER AND SPIRIT IN THE PROCEEDING AS THE REMEDIES AVAILA BLE IN LAW ARE NOT TO BE ABUSED AND COURTS TAKE A VERY SERIOUS VIEW WHERE OPPORTUNI TIES SO GRANTED ARE MIS-UTILISED. THE ISSUE IS RESTORED IN THE INTERESTS OF SUBSTANTI AL ISSUE. 4. IN THE RESULT, ITA NO. 4469/DEL/2012 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 4470/DEL/2012 5. SINCE THE GROUNDS IN ITA 4470/DEL/2012 ARE IDEN TICAL AND DEPENDENT ON THE CONCLUSION ARRIVED AT IN ITA 4469/DEL/2012 WHICH WA S THE SPECIFIC SUBMISSION OF THE LD. CIT DR. ACCORDINGLY THE SAID APPEAL IS ALS O RESTORED TO THE CIT ROHTAK WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONABLE OPPORT UNITY IS BEING HEARD. 6. IN THE RESULT, ITA NOS. 4469 & 4470/DEL/2012 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13/9/ 2013. SD/- SD/- (B. C. MEENA ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 13 TH DAY OF SEPTEMBER, 2013 R. NAHEED COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. AR,ITAT ITA NOS. 4469 &44 70/DEL/2012 5 NEW DELHI