MIRJOLI MUSLIM ANJUMAN BOMBAY, MUMBAI V. ITO CIB, MUMBAI

ITA 5590/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83668 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-09-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 01-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Opportunity of being heard; Reasonable cause
• Section: 143(3); 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI , BEFORE : SHRI R.C.SHARMA , A M & SHRI AMIT SHUKLA , J M ITA NO. 5590 / MUM/20 1 1 ( ASSESSMENT YEAR : 2005 - 06 ) MIRJOLI MUSLIM ANJUMAN BOMBAY , DALWAI HOUSE, S.V. ROAD, JOGESHWARI (WEST), MUMBAI - 400 102 VS. ITO, CIB, KOLHAPUR, MAHARASHTRA PAN/GIR NO. : A A BT M 1066 F ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI BHUPENDRA SHAH /REVENUE BY : SHRI MAURYA PRATAP DATE OF HEARING : 1 ST SEPT. 201 4 DATE OF PRONOUNCEME NT : 1 ST SEPT , 201 4 O R D E R PER R.C.SHARMA ( A .M.) : THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORDER CIT(A ) , DATED 1 - 2 - 2011 FOR ASSESSMENT YEAR 2005 - 06 , IN THE MATTER OF ORDER PASSED UNDER SECTION 143(3) OF THE ACT . 2 . THERE IS A MARGINAL DELAY OF 7 DAYS IN FILING THE PRESENT APPEAL. AFTER CONSIDERING THE REASONS ADVANCED BY THE LEARNED AR FOR CONDONATION OF DELAY, WE ARE SATISFIED THAT THERE WAS REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL. KEEPING IN VIEW THE INTEREST OF SU BSTANTIAL JUSTICE, WE CODONE THE DELAY AND APPEAL IS BEING HEARD AND NOW DECIDED ON MERITS. ITA NO. 5590 /1 1 2 3 . THE ASSESSEE IN ITS APPEAL HAS RAISED THE FOLLOWING GROUNDS : - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER ERRED IN ADDING RS. 10,96,500/ - AS UNEXPLAINED DEPOSIT ON THE BASIS OF DEPOSITS REPORTED IN AIR FURNISHED U/S 285BA BY THE BANK EVEN THOUGH THE SAME IS REFLECTED IN THE AUDITED ACCOUNTS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSE SSING OFFICER ERRED IN ADDING RS. 10,96,500/ - U/S 144, EVEN THOUGH THE APPELLANT IS NOT ASSESSED BY THE SAID ASSESSING OFFICER. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN PASSING THE ORDE R BY OVERLOOKING THE FACT THAT THE APPELLANT IS RUNNING THE SCHOOL IN THE NAME OF NATIONAL ENGLISH MEDIUM SCHOOL AND THEREBY WRONGLY CONCLUDING THAT THE APPELLANT AND THE SAID SCHOOL ARE DIFFERENT ENTITY. 4. THE LEARNED A.O . HAS WRONGLY LEVIED INTEREST U / S 234A & B. RELIEF PRAYED: THE APPELLANT THEREFORE PRAYS AS FOLLOWS, 1. TO REMAND THE MATTE R BACK TO THE ASSESSING OFFICER/ COMMISSIONER OF INCOME TAX (A) FOR CONSIDERING THE EVIDENCES AVAILABLE WITH THE APPELLANT. WITHOUT PREJUDICE TO THE ABOVE, 2. TO DELETE THE ADDITION OF RS. 10,96,5001 MADE BY WAY OF UNEXPLAINED DEPOSITS. 3. TO DELETE INTEREST U/ S 234A & B. 4 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT T HE ASSESSEE IS A PUBLIC CHARITABLE TRUST REGISTERE D UNDER THE BOMBAY PUBLIC TRUST ACT, 1950 HAVING REGISTRATION NO. B - 903 (MUM) AND REGISTER OFFICE AT DALWAI HOUSE, S. V. ROAD,JOGESHWARI (WEST), MUMBAI - 400102 AND HAVING PAN: MBTM1066F. THE ASSESSEE IS A REGULAR INCOME TAX PAYER HAS FILED RETURN OF INCOME UPTODATE. THE TRUST RUNS ENGLISH MEDIUM SCHOOL AT CHIPLUN AND OPERATING CURRENT AND SAVING ACCOUNTS IN TH E NAME OF SCHOOL AT CHIPLUN. THE ASSESSING OFFICER HAS GATHERED INFORMATION REGARDING TRANSACTION OF CASH DEPOSITED IN SAVING ACCOUNTS OF THE SCHOOL AS PER THE ANNUAL INFORMATION RETURN FURNISHED U/S. 285BA OF THE INCOME TAX ACT, 1961. THE TOTAL CASH DEPOSITED IN ITA NO. 5590 /1 1 3 SAVING ACCOUNT DURING THE F. Y. 2004 - 05 IS RS. 10,96,500/ - . THE ASSE S SING OFFICER ISSUED NOTICE U/S.142 (1) OF THE INCOME TAX ACT,1961 CALLING F OR THE RETURN OF INCOME FOR A. Y. 2005 - 06 ON 03 - 09 - 2007. THE NOTI CE WAS ISSUED AT THE ADDRESS OF THE NATIONAL ENGLISH MEDIUM SCHOOL' CHIPLUN. THE AO PASSED ORDER UNDER SECTION 144 AND MADE AN ADDITION OF RS. 10,96,500/ - BY PASSING ORDER IN THE NAME OF NATI ONAL ENGLISH MEDIUM SCHOOL, CHIPLUN. AS TRUST IS ASSESSABLE ENTITY, ASSESSEE FILED APPEAL IN THE NAME OF TRUST. T HE CIT(A) ALSO NOTED THIS FACT THAT ASSESSMENT ORDER WAS PASSED IN THE NAME OF SCHOOL, WHEREAS APPEAL WAS FILED IN THE NAME OF TRUST, ACCORDING LY TREATED THE APPEAL INFRUCTUOUS AND ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5 . LEARNED AR DRAWN OUR ATTENTION TO THE FACT THAT ASSESSEE IS A PUBLIC CHARITABLE TRUST, WHO RUNS AN ENGLISH MEDIUM SCHOOL. ALL THE FEES RECEIVED BY THE SCHOOL IS PROPERLY ACCO UNTED FOR AND DULY DEPOSITED IN THE BANK ACCOUNT. OUR ATTENTION WAS ALSO INVITED TO THE COPY OF THE PAN CARD ISSUED IN THE NAME OF THE ASSESSEE ( MIRJOLI MUSLIM ANJUMAN BOMBAY ) . THE ASSESSEE IS ASSESSED AS A PUBLIC CHARITABLE TRUST AT MUMBAI HAVING JURISDIC TIONAL OFFICE OF THE DEPUTY DIRECTOR OF THE INCOME TAX - 1(1), MUMBAI VIDE PAN NO. AABTM 1066 F. THE NATIONAL ENGLISH MEDIUM SCHOOL IS BEING BRANCH OF THE TRUST REGISTERED AT MUMBAI, HAS FILED IT RETURNS CONSOLIDATING THE ACCOUNTS OF THE SCHOOL. THUS, THE JUR ISDICTION OF THE SAID SCHOOL FALLS AT MUMBAI. IT APPEARS THAT IN RESPECT OF FEES DEPOSITED BY SCHOOL, ADDITION WAS MADE BY THE AO KOLHAPUR, WHO HAS NO JURISDICTION OVER THE ASSESSEE. THE AO HAS PASSED THE ORDER WITHOUT MENTIONING ANY PAN NO. IT APPEARS THA T EVEN THE AO HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO EXPLAIN THE CASH DEPOSIT IN THE BANK ACCOUNT, WHICH APPEARS TO BE OUT ITA NO. 5590 /1 1 4 OF FEES COLLECTED BY THE SCHOOL. WE FOUND THAT ACCOUNTS OF THE ASSESSEE TRUST ARE AUDITED. THE BANK ACCOUNT FROM WHICH THE AO HAS T AKEN FIGURES OF CASH DEPOSIT IN FINANCIAL YEAR 2004 - 05 ARE SHOWN IN THE BOOKS OF ACCOUNTS. ACCORDINGLY, THE ADDITION MADE BY PASSING EX - PARTE ORDER BY THE AO HAVING NO JURISDICTION IS BEING SET ASIDE AND THE MATTER IS RESTORED BACK WITH A DIRECTION FOR PAS SING THE ORDER BY AO HAVING CORRECT JURISDICTION OVER THE ASSESSEE. NEEDLESS TO SAY THAT ASSESSEE SHOULD BE GIVEN OPPORTUNITY OF BEING HEARD. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01/09/ 201 4 . 2014 SD/ - SD/ - ( ) ( AMIT SHUKLA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMB ER MUMBAI ; DATED 01/09 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//