Madan Lal Memorial Educational Society, Ghaziabad V. Addl. CIT, Ghaziabad

ITA 5526/DEL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2880 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 17-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Keywords: Opportunity of being heard; Non compliance
• Section: 143(3); 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO. - 5526 /DEL/201 5 (ASSESSMENT YEAR - 2010 - 11 ) MADAN L AL MEMORIAL EDUCATIONAL SOCIETY, S - 61, C - BLOCK, SHALIMAR GARDEN EXT. - II, SAHIBABAD, GHAZIABAD - 201005 PAN - AABTM4393B (APPELLANT) VS ADDL. CIT, RANGE - 1, GHAZIABAD (RESPONDENT ) APPELLANT BY SH.ANIL KUMAR, CA RESPONDENT BY SH.YATENDRA SINGH, SR. DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 17 .0 6 .2015 OF CIT(A), GHAZIABAD PERTAINING TO 20 1 0 - 1 1 ASSESSMENT YEAR ON VARIOUS GROUNDS . HOWEVER, THE PARTIES WERE HEARD ONLY IN RESPECT TO GROUND NO.1 WHICH READS AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ILLEGAL DEMAND OF RS.169407/ - (TAX OF RS.129324/ - PLUS INTEREST OF RS.40083/ - ) CREATED BY A.O. UNDER SECTION 143(3) OF THE INCOME TAX ACT. WITHOUT GOING INTO MERIT OF THE CASE, THE LD. CIT HAS DISMISSED THE APPEAL FOR NON - COMPLIANC E OF THE SEVERAL NOTICES BY THE COUNSEL OF THE ASSESSEE. WHEREAS, THE ASSESSEE WAS NOT AWARE OF NON COMPLIANCE COMMITTED BY THE COUNSEL. HE WAS TOTALLY IGNORANT OF THE FACT THAT THESE DATES ARE NOT ATTENDED BY HIS COUNSEL. THE ACTION OF AUTHORITIES BELO W IS WRONG, ILLEGAL, MISCONCEIVED, UNJUSTIFIED AND BAD AT LAW THEREFORE IT SHOULD BE QUASHED. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN DECLARING NIL INCOME AND CLAIMING EXEMPTION U/S 10(23C)(IIIAD) OF THE I.T.ACT, 1961. THE AO T OO K NOTE OF THE FACT THAT THE SOCIETY WAS RUNNING A SCHOOL DATE OF HEARING 17 . 11 .2015 DATE OF PRONOUNCEMENT 01 . 0 1 .201 6 I.T.A .NO. - 5526/ DEL/201 5 PAGE 2 OF 3 NAMED MADAN LAL MEMORIAL SCHOOL AT SAHIBABAD, GHAZIABAD AND AS PER THE MEMORANDUM THE SOCIETY WAS ESTABLISHED WITH THE AIM TO IMPART EDUCATION AND OTHER CHARITABL E ACTIVITIES COVERED U/S 2(15) O F THE ACT. HE FURTHER FOUND THAT THE ASSESSEE SOCIETY THOUGH HAD BEEN REGISTERED WITH THE REGISTRAR OF SOCIETIES VIDE REGISTRATION NO.106/1998 - 99 DATED 30.04.1998 HOWEVER H AD NOT BEEN REGISTERED U/S 12AA OF THE IT ACT, 1961 NOR HAD TAKEN ANY EXEMP TION U/S 80 - G ON THE GROUNDS OF SCHOOL ACTIVITIES CLAIMED TO BE COVERED U/S 10(23C)(IIIAD) OF THE ACT. ACCORDINGLY IN VIEW THEREOF CERTAIN ADDITIONS WERE MADE CONCLUDING THE ASSESSMENT A T AN INCOME OF RS. 4,18,445/ - . 3. THESE ADDITIONS WERE CHALLENGED I N APPEAL BEFORE THE CIT(A) HOWEVER AS PER RECORD ON THE VARIOUS DATES, THE APPEAL CAME UP FOR HEARING , AN ADJOURNMENT WAS SOUGHT ON BEHALF OF THE ASSESSEE AND ULTIMATELY THE IMPUGNED ORDER WAS PASSED DISMISSING THE ASSESSEE S APPEAL IN LIMINE. 4. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5 . THE LD.AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE S COUNSEL NEVER INFORMED THE ASSESSEE THAT HE WAS REPEATEDLY SEEKING ADJOURNMENTS BEFORE THE CIT(A). ACCORDING LY ON ACCOUNT OF THIS FACT, IT WAS HIS REQUEST THAT THE IMPUGNED ORDER MAY BE SET ASIDE AND THE ISSUE MAY BE RESTORED TO THE FILE OF THE CIT(A). T HE LD. AR IN RESPONSE TO THE QUERY FROM THE BENCH GAVE HIS ORAL UNDERTAKING THAT IN CASE AN OPPORTUNITY IS PROVIDED THE ASSESSEE WOULD FULLY PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A) . 6 . CONSIDERING THE REQUEST, THE LD. SR. DR HAD NO OBJECTION IF THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A). 7 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. APART FROM THE ARGUMENTS ADVANCED IT IS SEEN THAT EVEN OTHERWISE THE IMPUGNED ORDER CANNOT STAND IN THE EYES OF LAW. THE STATUTE MANDATES THAT THE APPEALS FILED BEFORE THE CIT(A) ARE TO BE DECIDED IN TERMS OF SECTION 250 OF THE INCOME TAX ACT, 1961. S UB - SECTION (6) OF SECTION 250 REQUIRES THAT THE CIT(A) WHILE DECIDING THE APPEAL I S TO SET OUT THE POINTS FOR DETERMINATION AND COME TO A CONCLUSION ON THE REASONING TO BE ADDRESSED THEREIN. THE SAID EX ERCISE IS FOUND TO BE MISSING IN THE FACTS OF THE PRESENT CASE. ACCORDINGLY CONSIDERING THE SUBMISSIONS OF THE PARTIES IN VIEW OF THE ABOVE MENTIONED FACTS, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE LD. CIT(A). THE CIT(A) IS I.T.A .NO. - 5526/ DEL/201 5 PAGE 3 OF 3 DIRECTED TO PAS S A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT FRITTERED AWAY AND IS GAINFULLY UTILIZE D BY MAKING EFFECTIVE REPRESENTATION BEFORE THE FIRST AP PELLATE AUTHORITY. THE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 1 S T OF JANUARY , 201 6 . S D / - S D / - (O.P.K ANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 0 1 / 0 1 /201 6 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI