M/s Sri Jagannadha Swamy, Sri Anjaneya Swamy & Sri Vernakeswara Swamy Temples, Hyderabad V. The Commissioner of Income Tax, Guntur

ITA 45/VIZ/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6980 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 01-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PRABHAKAR
• Assessee Lawyers: A V RAGHURAM
• Keywords: Opportunity of being heard
• Section: 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.45/VIZAG/2010 ASSESSMENT YEAR : N.A. SRI JAGANNADHA SWAMY, SRI ANJANEYA SWAMY & SRI VENKATESWARA SWAMY TEMPLES, GUNTUR CIT, GUNTUR (APPELLANT) VS. (RESPONDENT) PAN NO.AADTS 8844H APPELLANT BY: SHRI A.V. RAGHURAM, ADVOCATE RESPONDENT BY: SHRI S. PRABHAKAR, DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT PASSED U/S 12AA R.W.S. 253(2) OF THE I.T. ACT DENYI NG THE REGISTRATION U/S 12A(A) OF THE ACT. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS INVITED OUR ATTENTION THAT IN FIRST ROUND OF APPEAL THE TRIBUNAL HAS GIVEN A SPECIFIC FINDING WITH REGARD TO GENUINENESS OF THE TRUST AND HAS RESTORED THE MATTER BACK TO THE FILE OF CIT WITH THE DIRECTION T HAT SINCE THE ASSESSEE IS A TRUST EXISTING FULLY FOR RELIGIOUS PURPOSE, ITS INC OME IS EXEMPT U/S 11 SUBJECT TO THE FULFILLMENT OF THE CONDITIONS PRESCRIBED THE REIN. CONSEQUENTLY, MATTER WAS TAKEN UP BY THE CIT AND THE ASSESSEE HAS PLACED THE RELEVANT RECORDS INCLUDING THE AUDITED INCOME AND EXPENDITURE ACCOUN T BEFORE THE CIT FOR ADJUDICATION OF THE ISSUE BUT THE CIT WAS NOT CONVI NCED WITH THE MATERIAL FILED BEFORE HIM AND HE AGAIN DENIED THE EXEMPTION ON THE GROUND THAT BALANCE SHEET WAS NOT FILED BEFORE HIM. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT CIT HAS NOT AFFORDED ANY OPPORTUNITY TO THE ASSESSES FOR FILING THE BALANCE SHEET. HE HAS FIXED THE MATTER FOR HEARING ONLY FOR A DAY AND ON THE SAME DAY HE HAS 2 DISPOSED OFF THE MATTER WITHOUT CALLING THE ASSESSE E TO PRODUCE SOME MORE INFORMATION OR SOME MORE DOCUMENTS. WHATEVER ASSES SEE THOUGHT FIT FOR A PROPER ADJUDICATION OF THE ISSUE, ASSESSEE HAS FILE D THE RELEVANT EVIDENCE. THE CIT OUGHT TO HAVE ASKED THE ASSESSEE TO PRODUCE THE BALANCE SHEET IF HE WAS NOT CONVINCED WITH THE INCOME EXPENDITURE ACCOU NT WHICH IS PREPARED AS PER THE PROVISIONS OF THE RELEVANT ACT UNDER WHICH THE ASSESSEE IS REGISTERED BUT THE CIT DID NOT DO THE SAME AND HAS AGAIN DENIE D THE EXEMPTION. UNDER THESE CIRCUMSTANCES, THE MATTER SHOULD GO BACK TO T HE CIT FOR FRESH ADJUDICATIONS OR THE TRIBUNAL MAY DECIDE ITSELF THE IMPUGNED ISSUE AFTER TAKING INTO ACCOUNT THE OTHER EVIDENCE FILED BY THE ASSESSEE. 4. THE LD. D.R. PLACED A HEAVY RELIANCE UPON THE OR DER OF CIT. 5. HAVING CAREFULLY EXAMINED THE ORDER OF CIT IN TH E LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT IT IS NOT CLEAR WHETHER T HE CIT HAS GIVEN SOME MORE OPPORTUNITY TO THE ASSESSES TO REPRESENT HIS C ASE. APPARENTLY WE FIND THAT CIT HAS NOT AFFORDED ANY MORE OPPORTUNITY OF B EING HEARD TO THE ASSESSES TO FULFILL THE REQUIREMENTS OF SECTION 11 OF THE ACT. NOTHING HAS BEEN PLACED BY THE REVENUE TO PROVE THAT CIT HAS GI VEN MORE THAN ONE OPPORTUNITY TO THE ASSESSES TO JUSTIFY ITS CLAIM. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT CIT HAS NOT AFFORDED THE PR OPER OPPORTUNITY OF BEING HEARD TO THE ASSESSES FOR PROSECUTING THIS CASE. W E THEREFORE SET ASIDE HIS ORDER AND RESTORE THE MATTER TO THE FILE OF THE CIT WITH THE DIRECTIONS TO AFFORD AN OPPORTUNITY OF BEING HEARD TO THE ASSESSE S BEFORE ADJUDICATING THE IMPUGNED ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 30.3.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 30 TH MARCH, 2010 3 COPY TO 1 K. VASANT KUMAR, A.V. RAGHU RAM & B. PEDDI RAJULU , ADVOCATES, 403, MANISHA TOWERS, D.NO.10-1-18/31, SHYAM NAGAR, HYDER ABAD-500 004 2 CIT, GUNTUR 3 THE CIT(A), GUNTUR 4 THE DR, ITAT, VISAKHAPATNAM. 5 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM