ITO, New Delhi V. M/s Moti Nagar Co-op Urban T&C Society Ltd., New Delhi

ITA 5241/DEL/2010

• Counselvise Citation: 524120114 RSA 2010
• Duration Of Justice: 1 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 19-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 25-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY SENIOR
• Assessee Lawyers: P K BANSAL
• Keywords: Depreciation; Additional evidence
• Section: 142(1); 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5241/DEL./2010 (ASSESSMENT YEAR : 2005-06) ITO, WARD 25 (3), VS. M/S. MOTI NAGAR COOP URBAN T &C SOCIETY LTD., NEW DELHI. 6/19, MOTI NAGAR, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.K. BANSAL, ADVOCATE REVENUE BY : SMT. SRUJANI MOHANTY, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THE REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER OF CIT (APPEALS)- XXIV, NEW DELHI DATED 28.09.2010 FOR THE ASSESSMENT YEAR 2005-06. THE GROUNDS OF APPEAL READ AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW CIT (A) HAS ERRED IN 1. DELETING THE ADDITION ON ACCOUNT OF CASH DEPOSIT S IN BANK ACCOUNT OF THE SOCIETY BY HOLDING THE DEPOSITS TO BE IN THE NATURE OF CONTRIBUTION RECEIPTS AND NOT INCOME. 2. ALLOWING THE DEDUCTION U/S 80P OF THE I.T. ACT, 1961 EVEN THROUGH THE ASSESSEE HAS NOT FILED THE RETURN OF I NCOME DURING THE YEAR. 3. ACCEPTING THE CONTENTION OF THE ASSESSEE THAT IT WAS NOT REQUIRED TO FILE ANY RETURN OF INCOME AS IT BAS NO TAXABLE ITA NO.5241/DEL./2010 2 INCOME I.E. THEY ARE ALLOWED 100% DEPRECIATION FRO M THE PROFIT U/S 80P WHICH IS IN CONTRAVENTION TO PROVIS ION OF SECTION 139 OF THE I.T. ACT, 1961. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR AME ND ANY GROUND OF APPEAL. 2. THE ASSESSEE IS A COOPERATIVE SOCIETY REGISTERED UNDER THE COOPERATIVE SOCIETY ACT. IT IS ALSO CLAIMED THAT THE ASSESSEE IS ENGAGED IN RENDERING CREDIT FACILITIES AND IT WAS ALSO CLAIMED THAT WHOLE INCOM E IS DEDUCTIBLE U/S 80P OF THE INCOME-TAX ACT. THE ASSESSING OFFICER RECEIVED THE INFORMATION FROM CIT (CIB). ON THAT BASIS, A NOTICE U/S 142(1) WAS ISSUED. THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 AND TREATED T HE TRANSACTION OF RS.32,30,700/- AS INCOME OF THE ASSESSEE. THE ASSE SSING OFFICER STATES THAT ON 09.10.2007 NO ONE ATTENDED NOR ANY REPLY WAS FIL ED. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). THE ASSESSEE SUBMITTED ADDITIONAL EVIDENCES. THE CIT (A) FORWARDED THESE EVIDENCES TO THE ASSESSING OFFICER FOR HIS COMMENTS ON ADMISSIBILITY OF THE SAME AS PER RULE 46A OF INC OME-TAX RULES. THE ASSESSING OFFICER OPPOSED THE ADMISSIBILITY OF THE ADDITIONAL EVIDENCES. THE CIT (A) HAS GRANTED THE RELIEF WITHOUT PROVIDING OP PORTUNITY TO ASSESSING OFFICER ON THE MERITS OF THESE EVIDENCES. 3. THE LEARNED DR SUBMITTED THAT THE CIT (A) FORWAR DED THE SUBMISSIONS/DOCUMENTS SUBMITTED BEFORE HIM AS ADDIT IONAL EVIDENCES TO ASSESSING OFFICER. THE ASSESSING OFFICER OBJECTED FOR ADMISSION OF THESE ITA NO.5241/DEL./2010 3 EVIDENCES. THE CIT (A) ADMITTED ALL THESE EVIDENCE S THOUGH THE ASSESSING OFFICER HAS NOT BEEN PROVIDED OPPORTUNITY TO COMMEN T UPON THE MERITS OF THE ADDITIONAL EVIDENCES. THEREFORE, THE ORDER OF CIT (A) DESERVES TO BE SET ASIDE. ON THIS ISSUE, LEARNED AR SUBMITTED THAT TH E ADDITIONAL EVIDENCES WERE FORWARDED TO THE ASSESSING OFFICER AND HE HAS NOT C OMMENTED ON THE MERITS OF THE DOCUMENTS, HOWEVER, THE CIT (A) HAS CONSIDER ED THESE DOCUMENTS AND GRANTED THE RELIEF. LEARNED AR RELIED ON THE ORDER OF THE CIT (A). 4. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND FR OM THE RECORDS AVAILABLE ON RECORD, WE HOLD THAT ALTHOUGH THE CIT (A) CALLED UPON THE REPORT FORM THE ASSESSING OFFICER ON THE ADMISSIBILITY OF THE ADDITIONAL EVIDENCE SUBMITTED BEFORE HIM WHICH THE ASSESSING OFFICER OP POSED. HOWEVER, THE CIT (A) HAS NOT RECORDED REASONS IN WRITING FOR THE ADMISSION OF THESE EVIDENCES. FURTHER THE CIT (A) HAS ALSO NOT ALLOWE D A REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE EVIDENCE ON RECORD OR TO CROSS EXAMINE THE WITNESSES OR TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE. THUS, THE CIT (A) HAS CLEARLY VIOLATED RULE 46A (2) AND (3). THE ASSESSING OFFICER HAD NOT BEEN PROVIDED REASONABLE OPPORTUNITY, THEREFORE, TH E MATTER DESERVES TO BE SENT BACK TO THE ASSESSING OFFICER. 4.1 IN THE INTEREST OF JUSTICE AND EQUITY, WE SET A SIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. ITA NO.5241/DEL./2010 4 SINCE WE HAVE RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WE FIND NO NECESSITY TO ADJUDICATE ON THE ALLOWABILITY OF T HE DEDUCTIONS U/S 80P OF THE INCOME-TAX ACT EVEN WHEN THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME FOR THE YEAR. THE ASSESSING OFFICER SHALL ALSO LOOK IN TO THIS ISSUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 23 RD DAY OF DECEMBER, 2011. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 23 RD DAY OF DECEMBER, 2011 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.