Bikaner Medical & Education Society, JODHPUR V. ITO, BIKANER

ITA 5/JODH/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5292 (ITAT-JODHPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Condonation of delay
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO S . 05 & 22 / JODH /201 6 (ASST. YEAR S : 200 9 - 1 0 & 2010 - 11 ) BIKANER MEDICAL & EDUCATION SOCIETY, BIKANER. VS. ITO, WARD - 1(1), BIKANER. PAN NO. AABTB 3681 K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHESH GEHLOT ADV. DEPARTMENT BY : S HRI S.L. MOURYA - DR DATE OF HEARING : 1 1 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 1 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THESE ARE THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR S 2009 - 10 & 2010 - 11 AGAINST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) , BIKANER , BOTH DATED 09/01/2015. 2. IN BOTH THE APPE A LS, THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL WHICH READ AS UNDER: - 1 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSMENT ORDER PASSED U/S 143(3)/147 OF THE INCOME TAX ACT 1961 DATED 31 . 01.2013 BY THE LD. ITO WARD - 1 (1), BIKANER AND ORDER PASSED BY CIT APPEAL DATED 09/01/2015 IS BAD IN LAW AND BAD IN FACTS. THEREFORE, THE ORDERS NEEDS TO BE SET ASIDE. 2 UN DER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. A.O. AND THE LD. CIT (A) WITHOUT APPRECIATING THE FACTS ERRED IN DISALLOWING CLAIM U/S 10(23C)(IIIAD) OF THE ACT. 3 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE 2 ITA NO S . 05 & 22 / JODH /201 6 LD.A.O. AND LD. CIT APPEAL ERRED IN DENYING THE CLAI M FOR EXEMPTION U/S 10 (23C) (IIIAD) OF THE ACT ON THE GROUND THAT OBJECTS ARE NOT CHARITABLE IN NATURE OF THE SAID EDUCATIONAL INSTITUTION. 4 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THERE WAS NEITHER ANY CONCEALMENT OF PARTICULARS OF INCOME BY THE APPELLANT NOR ANY INACCURATE PARTICULARS OF SUCH INCOME WERE FURNISHED. THE LD. A.O. ON THE BASIS OF ASSUMPTION AND PRESUMPTION, WITHOUT APPRECIATING THE FACTS AND MERITS OF THE CASE WRONGLY INITIATED THE PENALTY PROCEEDINGS U/S 271(10) OF TH E I.T. ACT, 1961. 5 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE KINDLY CONDONATION OF DELAY MAY BE ALLOWED IN THE INSTANT CASE. THE CHARTERED ACCOUNTANT APPOINTED BY THE APPELLANT/TRUST HAS NOT INFORMED THE CIT APPEAL ORDER TO THE APPELLANT. THAT THE APP ELLANT RESERVES THE RIGHT TO ADD, AMEND, ALTER, DELETE OR MODIFY OR WITHDRAW ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3 . AT THE OUTSET , AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEALS OF THE ASSESSEE ON THE GROUND THAT ASSESSEE FAILED TO PUT IN APPEARANCE ON THE DATE OF HEARING FIXED ON 25/03/201, 06/05/2014, 16/07/2014, 31/10/2014 & 24/09/2014 . HE SUBMITTED THAT THE ASSESSEE HAD ENGAGED CHARTERED ACCOUNTANT TO PRESENT HIS APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), WHO FAILED TO APPEAR BEFORE HIM . HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE . THE A SSESSEE HAS VERY GOOD CAS E AND SHALL COOPERATE WITH THE COMMISSIONER OF INCOME TAX (APPEALS) AND SUBMIT BEFORE HIM ALL THE DETAILS AND DOCUMENTS , REQUIRED FOR DISPOSING OF THE CASES. 4 . DEPARTMENTAL REPRESENTATIVE , ON THE OTHER HAND , VEHEMENTLY OBJECTED TO THE GRANTING OF FURTHER OPPORTUNITY TO THE ASSESSEE FOR PRESENTING ITS APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT COMMISSIONER OF INCOME TAX (APPEALS) 3 ITA NO S . 05 & 22 / JODH /201 6 HAS DISMISSED THE APPEAL OF THE ASSESSEE AS THE ASSESSEE FAILED TO PUT IN APPEARANCE ON THE DATE S OF HEARING FIXED BY HIM. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. VS. ITAT & OTHERS IN W.P.NO. 1740/2013 ORDER DATED 23/09/2013 HAS HELD THAT THE TRIBUNAL HAS NO POWER TO DISMISS APPEAL FOR NON - APPEARANCE OF APPELLANT . IT HAS TO DEAL WITH THE MERITS . RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE TO DECIDE THE APPEAL S OF THE ASSESSEE ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6 . IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON FRIDAY , THE 1 1 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 1 TH MARCH , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER