DCIT, EXEMPTION CIRCLE, GHAZIABAD V. CITY EDUCATIONAL TRUST, NOIDA

ITA 4495/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2908 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 06-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIINDER PAL SINGH
• Keywords: Charitable institution; Opportunity of being heard; Set aside
• Section: 271(1)(c); 12A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI G.S. PANNU, VICE-PRESIDENT & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 4495/DEL/2017 ASSESSMENT YEARS: 2010-11 DCIT (EXEMPTION), VS. CITY EDUCATIONAL TRUST, CIRCLE, GHAZIABAD. ROOM NO. 105, CGO COMPLEX-II 1 ST FLOOR, KAMLA NEHRU NAGAR, GHAZIABAD. PAN- AAATC3605P (APPELLANT) (RESPONDENT) REVENUE BY: SHRIINDER PAL SINGH, CIT/DR ASSESSEE BY: SHRI ASHISH BANSAL, ADVOCATE DATE OF HEARING: 04/03/2020 DATE OF PRONOUNCEMENT: 04/03/2020 ORDER PER K. NARASIMHA CHARY, JM CHALLENGING THE ORDER DATED 08.03.2017 PASSED IN AP PEAL NO. 68/2016-17 BY LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-I, NOIDA (LD. CIT(A)), IN THE CASE OF CITY EDUCATIONAL TRU ST (THE ASSESSEE), REVENUE FILED THIS APPEALFOR ASSESSMENT YEAR 2010-1 1. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, B EING A CHARITABLE TRUST REGISTERED U/S. 12A OF THE ACT, RECEIVED DONA TIONS OF RS.1,39,02,003/-. THE ASSESSING OFFICER, HOWEVER, T REATED THESE DONATIONS AS HAVING BEEN RECEIVED FROM ANONYMOUS SO URCES AND ADDED THE SAME AS TAXABLE INCOME OF ASSESSEE UNDER THE PR OVISIONS OF SECTION 2 115BBC OF THE ACT. THE APPEAL FILED BY ASSESSEE, CH ALLENGING THIS ADDITION, STOOD DISMISSED BY THE LD. CIT(A). THEREAFTER, LD. ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND IMPOSED A PENALTY OF RS.50,11,700/- U/S. 271(1)(C) OF THE ACT VIDE ORDER DATED 30.03.20 16, ONLY STATING THAT THE REPLY FILED BY ASSESSEE IS NOT SATISFACTORY. 3. AGGRIEVED BY SUCH PENALTY, ASSESSEE PREFERRED AP PEAL BEFORE THE LD. CIT(A), AND CONTENDED THAT THE IMPUGNED DONATIO NS WERE FROM VERIFIABLE SOURCES, WHICH THE ASSESSEE COULD NOT BE ABLE TO ESTABLISH BEFORE THE ASSESSING OFFICER FOR WANT OF REASONABLE OPPORTUNITY OF BEING HEARD GIVEN TO THEM. BEFORE CIT(A) THE ASSESSEE, HO WEVER, SUBMITTED CORROBORATING EVIDENCES REGARDING EXISTENCE OF DONO RS WHO CONTRIBUTED TO THE CORPUS OF ASSESSEE TRUST ALONG WITH THEIR PA N AND BANK STATEMENTS. THE LD. CIT(A) HAVING CONSIDERED ALL TH E MATERIAL ON RECORD OBSERVED THAT ONCE A PARTICULAR DONOR IS HAVING PAN AND IS FILING RETURN OF INCOME AND ALSO MAINTAINING BANK ACCOUNT, SUCH DONO R CANNOT BE HELD TO BE ANONYMOUS. THEREFORE, LD. CIT(A) DELETED THE PEN ALTY IMPOSED AGAINST THE ASSESSEE VIDE IMPUGNED ORDER. AGGRIEVED, THE RE VENUE IS IN APPEAL BEFORE US. 4. THE LD. DR SUBMITS THAT THE ASSESSEE WAS GIVEN R EASONABLE OPPORTUNITY TO PROVE THE GENUINENESS OF DONATIONS R ECEIVED, BUT HE FAILED TO DO SO. THE ASSESSEE HAD ATTENDED THE ASSE SSMENT PROCEEDINGS FROM TIME TO TIME AND FURNISHED THE DETAILS, AS CAN BE SEEN FROM THE ASSESSMENT ORDER. HENCE, IT CAN HARDLY BE SAID THAT THE ASSESSEE WAS NOT GIVEN REASONABLE OPPORTUNITY TO PROVE ITS CASE. IT IS FURTHER SUBMITTED THAT THE ADDITION MADE U/S. 115BBC STOOD AFFIRMED I N QUANTUM APPEAL BEFORE THE LD. CIT(A) AND THEREFORE, THE DELETION O F PENALTY IS NOT JUSTIFIED. 3 5. PER CONTRA, THE LD. AR, STRONGLY RELYING ON THE FINDINGS OF LD. CIT(A), SUBMITS THAT SINCE THE QUANTUM APPEAL FILED BY ASSE SSEE BEFORE ITAT STOOD ALLOWED AND THE MATTER STOOD REMANDED TO THE FILE OF ASSESSING OFFICER FOR VERIFICATION OF SOURCES OF TRANSACTION AND FOR PASSING THE ASSESSMENT AFRESH, THE VERY BASIS OF PENALTY STANDS COLLAPSED AND AS SUCHTHE PENALTY CANNOT BE SUSTAINED. HE FURTHER SUB MITTED THAT PURSUANT TO THE REMAND ORDER, LEARNED ASSESSING OFFICER PASS ED FRESH ASSESSMENT ORDER, GIVING RISE TO FRESH PENALTY PROCEEDINGS. 6. WE HAVE GONE THROUGH THE MATERIAL ON RECORD IN T HE LIGHT OF SUBMISSIONS MADE ON EITHER SIDE. IT IS SEEN THAT IN THE QUANTUM APPEAL OF THE ASSESSEE IN RESPECT OF IMPUGNED ADDITION MADE U /S. 115BBC OF THE ACT, THE TRIBUNAL BY ORDER DATED 27.04.2018 HAS SET ASIDE THE ASSESSMENT AND REMITTED THE MATTER BACK TO THE FILE OF ASSESSI NG OFFICER FOR MAKING FRESH ASSESSMENT AFTER DUE VERIFICATION OF THE TRAN SACTION. THERE IS NO DENIAL OF THE FACT THAT SUBSEQUENT TO THE REMAND OR DER, LEARNED ASSESSING OFFICER FRAMED A FRESH ASSESSMENT GIVING RISE TO FR ESH PENALTY PROCEEDINGS. IN VIEW OF THIS, THE VERY BASIS, ON WH ICH THE IMPUGNED PENALTY IS IMPOSED, STANDS COLLAPSED AND ACCORDINGL Y, THE PENALTY IMPOSED CANNOT BE SUSTAINED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2020. SD/- SD/- (G.S. PANNU) (K.NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 04/03/2020 *AKS*