M/s. Arihant Charitable Hospital Trust Society (Regd.), New Delhi V. Addl. CIT, Ghaziabad

ITA 5019/DEL/2015

• Counselvise Citation: 501920114 RSA 2015
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 05-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GARIMA JAIN
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1)

Judgement Text

ITA NO.5019/DEL/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5019/DEL/2015 A.Y. : 2010-11 ARIHANT CHARITABLE HOSPITAL TRUST SOCIETY (REGD.), C/O RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI 49 (PAN:AABTA0478K) VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE-1, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA, ADV., SH. TARUN KUMAR, ADV. & SH. SOMIL AGGARWAL, ADV. DEPARTMENT BY : MS. GARIMA JAIN, SR. DR DATE OF HEARING : 05-11-2015 DATE OF ORDER : 17-11-2015 ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIREC TED AGAINST THE ORDER OF THE LD. CIT(A), GHAZIABAD DATED 15.5.2015 RELATING TO ASSTT. YEAR 2010-11. 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THE A PPEAL. 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF LD. AO IN TAKING THE FIGURE OF RS.5,55,284/- WHILE CALC ULATING THE INCOME ASSESSED INSTEAD OF NIL INCOME AS DECLARED BY THE A PPELLANT SOCIETY. ITA NO.5019/DEL/2015 2 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWANCE OF RS.2,25,571/- ON ACCOUNT OF DEPRECIATION CLAIMED BY THE APPELLANT. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING THE EXEMPTION ULS 1O(23C)(IIIAE) AN D HAS FURTHER ERRED IN OBSERVING THAT THERE IS A PROFIT MOTIVE OF THE SOCI ETY AND I~NED ORDER HAS BEEN PASSED BY RECORDING INCORRECT FACTS AND FINDIN GS AND WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF HEARING. 4. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACTION OF LD. CIT (A) IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOW ING THE EXEMPTION ULS 1O(23C)(IIIAE) AND IN DELETING THE DISALLOWANCE OF DEPRECIATION AND IN FRAMING THE IMPUGNED ORDER WHICH IS BEYOND JURISDIC TION, ILLEGAL, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, BY RECO RDING INCORRECT FACTS AND FINDINGS, BARRED BY LIMITATION, CONTRARY TO THE LAW AND FACTS AND DESERVES TO BE QUASHED. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSI NG THE ACTION OF THE AO IN NOT ALLOWING THE CREDIT OF PREPAID TAXES. 6. THAT THE ASSESSEE CRAVES THE LEAVE TO ADD, ALTER OR AMEND THE GROUNDS OF APPEAL AT ANY STAGE AND ALL THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME HAS BEEN FILED BY THE SOCIETY ON 2.8.2011 DECLARING NIL INCOME. THE C ASE WAS SELECTED UNDER COMPULSORY SCRUTINY. THE NOTICE U/S. 143(2) DATED 22.9.2011 AND NOTICE U/S. 142(1) ALONGWITH QUESTIONNAIRE DATED 28.6.2012 ALON GWITH THE STATUTORY NOTICES ITA NO.5019/DEL/2015 3 WAS SERVED UPON THE ASSESSEE REQUIRING FOR VARIOUS DETAILS AND INFORMATION AS CONSIDERED NECESSARY FOR SCRUTINY OF THE CASE. IN COMPLIANCE THERETO, ASSESSEES COUNSEL ATTENDED THE PROCEEDINGS AND REQUIRED DETAI LS WERE FILED. THEREAFTER, THE AO COMPLETED THE ASSESSMENT AT AN INCOME OF RS . 7,80,855/- VIDE HIS ORDER DATED 28.2.2013 PASSED U/S. 143(3) OF THE I.T. ACT, 1961. 4. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 15.5. 2015 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. AGAINST THE AFORESAID ORDER OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL OF THE ASSESSEE REITERATED THE CONT ENTION RAISED IN THE GROUNDS OF APPEAL AND ALSO FILED A PAPER BOOK CONTA INING PAGES 1 TO 20 HAVING COPY OF ASSESSEES REPLY DATED 17.12.2012 FILED TO THE AO; COPY OF ASSESSEES REPLY DATED 8.1.2013 FILED TO THE AO ALONGWITH ANNE XURES; COPY OF ASSESSEES REPLY DATED 22.1.2013 FILED TO THE AO; COPY OF ASSE SSEES SUBMISSIONS DATED 9.1.2015 FILED BEFORE THE LD. CITA(A) AND COPY OF A SSESSEES SUBMISSIONS DATED 30.4.2015 FILED BEFORE THE LD. CIT(A) AND STA TED THAT THE SAME WERE CONSIDERED BY THE LOWER AUTHORITIES. 7. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY THE LD. CIT(A) ON THE ISSUES IN DISPUTE. 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. 8.1 WITH REGARD TO GROUND NO. 2 RELATING TO DISALLO WANCE OF RS. 2,25,571/- ON ACCOUNT OF DEPRECIATION CLAIMED BY THE ASSESSEE IS CONCERNED, I FIND THAT THE LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) WHER EIN THE LD. CIT(A) HAS ITA NO.5019/DEL/2015 4 RELIED UPON VARIOUS JUDGMENTS WHICH IS IN FAVOUR OF THE REVENUE. SIMILARLY, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO RELIED UPON V ARIOUS JUDGMENT INCLUDING THE JUDGMENT OF THE HONBLE DELHI HIGH COURT WHICH ARE DECIDED IN FAVOUR OF THE ASSESSEE. NO DECISION, DIRECT ON THE POINT, O F HONBLE JURISDICTIONAL HIGH COURT HAS BEEN BROUGHT TO MY NOTICE. KEEPING IN V IEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE JUDGMENT CITED BY BOTH THE PARTIES WHICH ARE IN FAVOUR OF THE ASSESSEE AS WELL AS IN F AVOUR OF THE REVENUE ALSO, I REFER THE HONBLE APEX COURT DECISION IN THE CASE O F M/S VEGETABLE PRODUCTS LTD. 88 ITR 192, WHEREIN IT HAS BEEN HELD THAT IN T HE TAXING PROVISION IF TWO CONSTRUCTIONS ARE POSSIBLE, ONE FAVOURING ASSESSEE SHOULD BE ADOPTED. 8.2 RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT, I DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND ACCORDI NGLY DELETE THE ADDITION IN DISPUTE AND DECIDE THE GROUND NO. 2 IN FAVOUR OF TH E ASSESSEE. 9. WITH REGARD TO GROUND NO. 3 RELATING TO NOT AL LOWING THE EXEMPTION U/S. 10(23C)(IIIAE) IS CONCERNED, AS PER THE AO, THE ASS ESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE THE LOWER AUTHORITIES. BUT BEFORE ME THE ASSESSEE HAS FILED A PAPER BOOK FOR SUBSTANTIATING HIS CLAI M CONTAINING PAGES 1 TO 20 HAVING COPY OF ASSESSEES REPLY DATED 17.12.2012 FI LED TO THE AO; COPY OF ASSESSEES REPLY DATED 8.1.2013 FILED TO THE AO ALO NGWITH ANNEXURES; COPY OF ASSESSEES REPLY DATED 22.1.2013 FILED TO THE AO; C OPY OF ASSESSEES SUBMISSIONS DATED 9.1.2015 FILED BEFORE THE LD. CIT A(A) AND COPY OF ASSESSEES SUBMISSIONS DATED 30.4.2015 FILED BEFORE THE LD. CIT(A) WHICH ITA NO.5019/DEL/2015 5 NEEDS TO BE CONSIDERED AFRESH, UNDER THE LAW. THE REFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE IS REMITTED BACK TO THE FILE O F THE AO FOR FRESH CONSIDERATION, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. 10. IN THE RESULT, THE ASSESSEES APPEAL STANDS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/11/2015. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 17/11/2015 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES