Abhinav Sikshan Evam Jan Kalyan Sewa Samiti, Kanpur V. Asstt. Commissioner of Income Tax-I, Kanpur

ITA 5/LKW/2014

• Counselvise Citation: 523714 RSA 2014
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: J J MEHROTRA
• Keywords: Opportunity of being heard
• Section: 69; 145; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.05/LKW/2014 ASSESSMENT YEAR:2009 - 10 ABHINAV SIKSHAN EVAM JAN KALYAN SEWA SAMITI, 13, MIG, BARRA - 2, SECTOR - 4, KANPUR. PAN:AAOFA0281P VS. A.C.I.T. - I, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. J. MEHROTRA, C.A. RESPONDENT BY SHRI ALOK MITRA, D. R. DATE OF HEARING 13/06/2014 DATE OF PRONOUNCEMENT 0 4 /0 7 /2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, KANPUR DATED 11/11/2013 FOR ASSESSMENT YEAR 2009 - 2010. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE L D. C I T (A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DISMISSING THE APPEAL EX - PARTE. 2. THAT THE L D. CIT (A) SHOULD HAVE DECIDED THE APPEAL ON MERITS AND IS WRONG IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHICH IS ERRONEOUS IN LAW AS WELL AS ON FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE L D. CIT(A) HAS ERRED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN DECIDING THE APPEAL EX - PARTE WITHOUT CONSIDERING THE STATEMENT OF FACTS, JUDICIAL PRONOUNCEMENTS CITED THEREIN AND ALS O NOT GIVING A FINDING IN RESPECT OF THE GROUNDS OF APPEAL TAKEN BY T HE APPELLANT. 4. THAT IN ANY VIEW OF THE MATTER THE L D. CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE FINDING OF THE ASSESSING OFFICER THAT THE APPELLANT SOCIETY IS NOT A CHARITABLE SOCIETY AND HAS 2 CONTRAVENED THE PROVISIONS OF SECTION 13 AND, THEREFORE, NOT ENTITLED TO EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT. 5. THAT IN VIEW OF THE MATTER, THE L D. CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,99,99,180/ - MADE BY THE AS SESSING OFFICER U/S. 40(A)( I A) ON NON DEDUCTION OF TAX WITHOUT PROPERLY CONSIDERING THE SUBMISSIONS OF THE APPELLANT. 6. THAT IN ANY VIEW OF THE MATTER THE L D. CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,36,83, 000 / - ON ACCOUNT OF ALLEGED UN EXPLAINED INVESTMENT IN PROPERTY MADE BY THE ASSESSING OFFICER UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 WITHOUT THERE BEING A WHISPER OF REJECTION OF BOOKS OF ACCOUNT UNDER SECTION 145 OF THE INCOME TAX ACT. 7. THAT THE ORDER PASSED BY THE L D. CIT (A) IS WITHOUT PROPER OPPORTUNITY AND BAD IN LAW. 8. THAT THE ORDER PASSED BY THE L D. CIT (A) IS AGAINST THE MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT CIT(A) HAS ISSUED ONLY TWO NOTICES DATED 01/08/2013 AND 10/09/2013 AND THESE NOTICES WERE NOT RECEIVED BY THE ASSESSEE. HE FURTHER SUBMITTED THAT THE CIT(A ) SHOULD HAVE ISSUED MORE NOTICES AND MOREOVER , EVEN IF HE WAS DECIDING THE APPEAL EX - PARTE QUA THE ASSESSEE, HE SHOULD HAVE AT LEAST CONSIDERED STATEMENT OF FACTS AND JUDICIAL PRONOUNCEMENTS CITED IN GROUNDS OF APPEAL AND THEREFORE, THE ISSUE IN THE PRESE NT APPEAL SHOULD BE RESTORED TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. AS AGAINST THIS, LEARNED D.R. OF THE REVENUE SUBMITTED THAT ALTHOUGH TWO NOTICES WERE ISSUED BY CIT(A) BUT THERE WAS NO COMPLIANCE AND EVEN NO ADJOURNMENT WAS SOUGHT BY THE ASSESSEE AND THEREFORE, THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY. 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE ORDER OF CIT(A), TWO NOTICES WERE ISSUED BY H IM. IN HIS ORDER, THE CIT(A) IS STATING THAT TWO NOTICES DATED 01/08/2013 AND 10/09/2013 WERE ISSUED FOR COMPLIANCE ON 02/09/2013 AND 25/09/2013 RESPECTIVELY AND THERE WAS NO COMPLIANCE BUT THERE IS NO MENTION IN THE ORDER OF CIT(A) THAT THESE NOTICES WER E SERVED UPON THE ASSESSEE OR NOT. IT IS ARGUED BY LEARNED A.R. OF THE ASSESSEE BEFORE US THAT THESE NOTICES WERE NOT SERVED UPON THE ASSESSEE. MOREOVER , IT IS ALSO SEEN THAT CIT(A) HAS NOT EVEN CONSIDERED STATEMENTS OF FACTS AND JUDICIAL PRONOUNCEMENTS CITED BY THE ASSESSEE IN GROUNDS OF APPEAL. HENCE, IN OUR CONSIDERED OPINION, THIS MATTER SHOULD GO BACK TO THE FILE OF CIT(A) FOR FRESH DECISION. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AF TER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. SINCE WE ARE RESTORING BACK THE MATTER TO CIT(A) FOR FRESH DECISION, WE REFRAIN FROM MAKING ANY COMMENT ON THE MERIT OF THE CASE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 4 /0 7 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR