Ashraya Sewa Sansthab, Chandauli V. DCIT, Varanasi

ITA 539/ALLD/2014

• Counselvise Citation: 53920714 RSA 2014
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K
• Keywords: Business expenditure
• Section: 80G; 12A; 10B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER I.T.A .NO. 5 39 / ALLD /201 4 (ASSESSMENT YEAR - 200 9 - 10 ) ASHRAYA SEWA SANSTHAN VS. DCIT THROUGH SHRI VIRENDRA SINGH, CIRCLE - 3, PRINCIPAL OFFI CER, VARANASI. BARDIHA, MATIGAON, CHANDAULI 221001 (U.P.) PAN: AAATA6795J (APPELLANT) (RESPONDENT) ASSESSEE BY: - NONE REVENUE BY: - SHRI A.K. PANDEY , DR DATE OF HEARING: 26/010/2015 ORDER PRONOUNCED ON: 30 /10/2015 ORDER T HIS APPEAL BY TH E ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 22 . 0 7 .201 4 PASSED BY THE LD. CIT (A) , VARANASI , IN RELATION TO THE ASSESSMENT YEAR 200 9 - 10 . 2. THE ASSESSEE HAD FILED RETURN OF INCOME I N F.NO. ITR 7 SHOWING INCOME AT RS. NIL ALONGWITH AUDITED FINAL ACCOUNT S. THE ASSESSMENT ORDER HAS BEEN PASSED U/S 144 OF THE I.T. ACT BECAUSE ASSESSEE DID NOT APPEAR BEFORE THE AO ON THE DATE FIXED FOR HEARING NOR FILE D ANY ADJOURNMENT APPLICATION. THE AO HAS OBSERVED THAT NO COPY OF REGISTRATION U/S 12A , IF I.T.A .NO.539/ALLD/2014 2 ANY, SANCTIONED BY THE APPROPRIATE AUTHORITY , IT HAD BEEN FILED BY THE ASSESSEE WITH THE RETURN OF INCOME. HE POINTED OUT THAT SINCE THE ASSESSEE WAS CLAIMING EXEM PTION ON ITS INCOME, THE ONUS LAY ON THE ASSESSEE TO SUBMIT EVIDE NCE IN SUPPORT OF ITS CLAIM. HE, ACCORDINGLY , DETERMINED THE TOTAL INCOME AT RS.11,58,320/ - BEING TOTAL RECEIPTS FROM DONATION, ANNUAL MEMBERSHIP FEE, GRANT FROM UPHSDP ETC. 3 . LD. CIT(A) DISMISSED THE ASSESSEES APPEAL, INTER ALIA, OBSERVING THAT DESPITE VARIOUS OPPORTUNITIES GIVEN TO THE ASSESSEE IT WAS NOT COMING UP WITH ANY ARGUMENT /SUBMISSIONS AGAINST THE ORDER OF THE AO. 4 . THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL BEFORE TRIBUNAL: 1. BECAUSE IT WAS FULLY EXPLAINED THAT THE MANAGING PRINCIPAL OFFICER SHRI VIRENDRA SINGH WAS SEVERELY SICK AND ULTIMATELY HIS KIDNEY WAS TRANSPLANTED AND IT WAS THE REASON THAT NEITHER HE COULD INSTRUCT THE COUNSEL OR CHARTERED ACCOUNTANT TO EXPLAIN THE POSITION BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE APPELLATE AUTHORITY. THE LD. CIT(APPEALS) HA S ERRED AND ACTED ILLEGALLY IN PASSING THE EX - PARTE ORDER WITHOUT TAKING INTO ACCOUNT THE REASON OF SEVERE SICKNESS OF THE PRINCIPAL OFFICER. 2. BECAUSE THE LEARNED ASSESSING OFFICER HAS ERRED AND ACTED ILLEGALLY IN TREATING THE AMOUNT OF RS.11,58,319/ - R ECEIVED AS DONATION, SUBSCRIPTION, ANNUAL MEMBERSHIP FEES, GRANT FROM UPHSDP AS UNAPPLIED BY THE ASSESSEE. THE LEARNED I.T.A .NO.539/ALLD/2014 3 CIT(APPEALS) HAS ERRED AND ACTED ILLEGALLY IN CONFIRMING THE SAME. 3. BECAUSE THE LEARNED ASSESSING OFFICER HAS ERRED AND ACTED ILLEGALL Y IN COMPLETING ASSESSMENT AT RS.11,58,319/ - IGNORING THIS ASPECT OF FACT THAT ASSESSEE IS A REGISTERED SOCIETY UNDER INCOME TAX LAW AND THE EXPENDITURE HAS BEEN CERTIFIED BY THE AUDITOR BY WAY OF FURNISHING FORM NO. 10B. THE LD. CIT (APPEALS) HAS ERRED AN D ACTED ILLEGALLY IN CONFIRMING THE ORDER EX - PARTY. 5. I HAVE CONSIDERED THE SUBMISSION S OF LD. DR. I FIND THAT IN GROUND NO. 1 ASSESSEE HAS STATED THAT BECAUSE OF THE SEVERE ILLNESS OF SHRI VIRENDRA SINGH , MANAGING PRINCIPAL OFFICER AND ON ACCOU NT O F HIS KIDNEY TRANSPLANT, T HE PROCEEDINGS REMAIN UNATTENDED PROPERLY. MOREOVER BEFORE LD. CIT(A) THE ASSESSEE HA D FILED THE FOLLOWING STATEMENT OF FACTS: 1. THAT THE MANAGING TRUSTEE OF THE ASSESSEE SHRI VIRENDRA PRATAP SINGH WAS SUFFERING FROM KIDNEY DISE ASE AND WAS ADMITTED IN THE ALL INDIA INSTITUTE OF MEDICAL SCIENCE, DEPTT. OF NEPHROLOGY, NEW DELHI ON 27.09.2011 AND HE WAS DISCHARGED ON 29.12.2011 AND HE WAS DISCHARGED ON 29.12.2011. IN CONFIRMATION THE DISCHARGE SUMMARY OF AIIMS IS ATTACHED. 2. THAT DUE TO BEING HOSPITALIZED OF THE MANAGING TRUSTEE ANY OF THE NOTICE MENTIONED IN THE ASSESSMENT ORDER I.E. 22.09.2011 AND 21.11.2011 COULD NEITHER BE RECEIVED NOR I.T.A .NO.539/ALLD/2014 4 EXPLAINED OR BETTER TO SAY THAT NO ONE COULD ATTEND ON THE DATE FIXED FOR HEARING. 3. THAT I N THIS WAY THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE IN NOT ATTENDING BEFORE THE LEARNED ASSESSING OFFICER. 4. THAT THE ASSESSEE HAS BEEN GRANTED REGISTRATION U/S 12A AS WELL AS U/S 80G OF THE ACT AND THERE IS NO OCCASION TO DISBELIEVE THIS ASPECT AS THE ASSESSEE HAS SUBMITTED THE FORM NO. 10B I.E. AUDIT REPORT U/S 12A OF THE I.T. ACT. 5. THAT IN CASE THE ASSESSMENT HAS BEEN MADE TREATING THE INSTITUTION AS UNREGISTERED U/S 12A THERE WAS NO OCCASION AND AUTHORITY TO THE ASSESSING OFFIC ER TO DISALLOW ALL THE EXPENDITURE DULY RECORDED IN PROFIT / LOSS A/C AS WELL AS INCOME & EXPENDITURE A/C. 6. THAT AS PER COMPUTATION OF INCOME THE EXPENDITURE IS RS.1068396/ - AND NET PROFIT IS RS.89920/ - AND THIS AMOUNT IS BELOW TAXABLE LIMIT ANY HOW THE RE WAS NO OCCASION TO IMPOSE THE HEAVY TAX ONLY ON THE RECEIPT OF THE ASSESSEE. ANY WAY IN ABSENCE OF REGISTRATION U/S 12A THE ASSESSMENT WAS TO BE COMPLETED UNDER BUSINESS & PROFESSIONAL INCOME TREATING ALL THE EXPENDITURE AS BUSINESS EXPENDITURE AND THES E ALL EXPENDITURE STANDS TO BE ALLOWED. 7. THAT ANY EXPENDITURE SO FAR AS BUSINESS IS CONCERN CAN ONLY BE MADE WHEN IT HAS ANY NEXUS WITH THE PERSONAL EXPENDITURE OTHER WISE THERE IS NO AUTHORITY TO THE ASSESSING OFFICER TO DISALLOW TO THE TOTAL EXPENDITU RE INSPITE OF THE AUDITO R REPORT. I.T.A .NO.539/ALLD/2014 5 6. FROM THE ORDER OF LD. CIT(A) , IT IS EVIDENT THAT THE LD. CIT(A) HAS NOT CONSIDERED THE APPEAL ON MERITS AND , THEREFORE, IN ORDER TO IMP A RT SUBSTANTIAL JUSTICE TO ASSESSEE, I RESTORE THE MATTER BACK TO THE FILE OF LD. C IT(A) TO DECIDE THE ASSESSEES APPEAL DE NOVO AFTER AFFORDING REASON ABLE OPPORTUNITY OF HEARING TO IT . NEEDLESS TO SAY THAT ASSESSEE WILL AVAIL THIS OPPORTUNITY AND CO - OPERATE IN DISPOSAL OF THE APPEAL EXPEDITIOUSLY. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /10/201 5 . SD/ - ( S. V. MEHROTRA ) ACCOUNTANT MEMBER DATED: 30 /10/2015 *AK VERMA* COPY FO RWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTR AR