Happy Days Shiksha Samiti, Shivpuri V. C.I.T., Gwalior

ITA 58/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0710 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 2 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-04-2013
• Assessment Year: misc
• Appeal Filed On: 21-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Opportunity of being heard; Set aside
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 58/AGRA/2013 HAPPY DAYS SHIKSHA SAMITI VS. COMMISSIONER OF KATHA MILL CAMPUS, A.B. ROAD, INCOME-TAX, GWALIOR . SHIVPURI. (PAN : AAAAH 1231 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 30.04.2013 DATE OF PRONOUNCEMENT OF ORDER : 03.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT, GWALIOR DATED 02.01.2013 REJECTING THE APPLICATION U/S. 12A A OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE-SOCIETY FILED APPLICATION IN PRESCRIBED FORM SEEKING REGISTRATION U/S. 12AA OF T HE IT ACT, WHICH WAS, HOWEVER, REJECTED. THE ASSESSEE PREFERRED APPEAL BEFORE THE ITAT, AGRA BENCH IN ITA NO. 13/AGR./2010, WHICH WAS ALLOWED BY THE TRIBUNAL VID E ORDER DATED 18.04.2011. THE TRIBUNAL FOUND THAT NO SUFFICIENT OPPORTUNITY H AS BEEN GIVEN TO THE ASSESSEE TO PROVE ITS CASE. THEREFORE, THE MATER WAS REMANDED T O THE LD. CIT, GWALIOR FOR ITA NO. 58/AGRA/2013 2 DECISION AFRESH. ACCORDING TO THE LD. CIT, THE MATT ER WAS RE-FIXED FOR HEARING AFRESH BY GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE MATTER WAS FIXED BEFORE HIM ON 27.09.2011 AND THE ASSESSEE WAS ASKED TO PRODUCE THE BOOKS OF ACCOUNT AND OTHER SUPPORTING DOCUMENTS SHOWING CHAR ITABLE ACTIVITIES CARRIED OUT BY THE ASSESSEE. HOWEVER, ON THE DATE OF HEARING NO NE APPEARED BEFORE HIM. ON 03.10.2011, HOWEVER, AN APPLICATION FOR ADJOURNMENT WAS RECEIVED FROM THE SOCIETY. THE LD. CIT AGAIN FIXED THE HEARING ON 02. 01.2013 WITH THE DIRECTION TO COMPLY WITH THE EARLIER NOTICE. SINCE, THERE WAS NO COMPLIANCE ON 02.01.2013, THE LD. CIT FOUND THAT THE ASSESSEE-SOCIETY HAS NOTHING TO SAY IN THE MATTER AND ACCORDINGLY THE APPLICATION WAS REJECTED. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE RECEIVED NOTICE FOR HEARING OF THE MATTER AFRESH FOR 27.09.2011 AND THE AUTHORIZED SIGNATORY WENT TO THE OFFICE OF LD. CIT, GWALIOR, WHERE THE SECURI TY GUARD INTIMATED THAT THE LOWER DIVISION EMPLOYEES AND 4 TH CLASS EMPLOYEES ARE ON STRIKE. THE AUTHORIZED REPRESENTATIVE MET THE LD. COMMISSIONER AND HE WAS INFORMED THAT SINCE THE EMPLOYEES ABOVE ARE ON STRIKE, THEREFORE, THE RECOR D IS NOT AVAILABLE AND, THEREFORE, HEARING OF THE CASE IS NOT POSSIBLE. THE ASSESSEE S ENT A REPRESENTATION DATED 27.09.2011 BY POST TO THE OFFICE OF THE LD. CIT, GW ALIOR, COPY OF THE SAME ALONG WITH POSTAL RECEIPT IS FILED AT PAGE 22 OF THE PAPE R BOOK, WHICH IS SUPPORTED BY THE ITA NO. 58/AGRA/2013 3 AFFIDAVIT OF SHRI NITIN KUMAR SEN. HE HAS, THEREFOR E, SUBMITTED THAT THERE WAS NO DEFAULT ON THE PART OF THE ASSESSEE IN NOT PUTTING APPEARANCE BEFORE THE LD. CIT. HE HAS FURTHER SUBMITTED THAT WHEN THE MATTER WAS AGAI N FIXED ON 02.01.2013, THE NOTICE DATED 27.12.2012 WAS SERVED BY REGISTERED PO ST AND RECEIVED ON SATURDAY, I.E., 29.12.2012 BY PEON OF THE SCHOOL, AS BY THAT TIME THE SCHOOL WAS CLOSED ON ACCOUNT OF WINTER VACATIONS TILL 09.01.2013. THEREF ORE, DUE TO CLOSURE OF SCHOOL AND ASSESSEE BEING UNAWARE OF THE SERVICE OF NOTICE ON PEON, THE HEARING FIXED FOR 02.01.2013 COULD NOT BE ATTENDED TO. AFFIDAVIT OF S HRI VIRENDRA KUMAR PAL, PEON IS ALSO FILED IN WHICH IT WAS EXPLAINED THAT THE NOTIC E OF THE CIT WAS HANDED OVER TO THE ASSESSEE AFTER VACATION WAS OVER ON 10.01.2013. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE MADE REPRESENT ATION BEFORE THE LD. CIT ON 29.01.2013 IN THIS REGARD. COPY OF THE SAME IS ALSO PLACED ON RECORD. HE HAS ALSO SUBMITTED THAT AGAIN NO REASONABLE OPPORTUNITY OF B EING HEARD HAS BEEN GIVEN TO THE ASSESSEE. ON THE OTHER HAND, THE LD. DR RELIED UPON THE IMPUGNED ORDER. 4. ON CONSIDERATION OF THE FACTS OF THE CASE IN THE LIGHT OF MATERIAL POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF LD. CIT, GWALIOR. O N EARLIER OCCASION ALSO, THE ORDER OF THE COMMISSIONER WAS SET ASIDE BECAUSE THE ASSES SEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY OF HEARING WHILE PASSING THE IMPUGNED O RDER. THE LD. CIT FIXED THE ITA NO. 58/AGRA/2013 4 MATTER FOR HEARING ON 27.09.2011 AND ACCORDING TO T HE ASSESSEE DUE TO STRIKE OF THE EMPLOYEES OF INCOME-TAX DEPARTMENT, THE CIT INTIMAT ED THAT SINCE RECORD IS NOT AVAILABLE, THEREFORE, THE HEARING COULD NOT TAKE PL ACE. THE ASSESSEE IMMEDIATELY SENT A REPRESENTATION ON THE SAME DAY TO THE LD. CI T, GWALIOR BY POST. COPY OF THE REPRESENTATION AND POSTAL RECEIPT IS AVAILABLE ON R ECORD AT PAGE 22 OF THE PAPER BOOK AND THE CONTENTION OF THE ASSESSEE IS SUPPORTE D BY THE AFFIDAVIT OF SHRI NITIN KUMAR SEN. THE LD. CIT ALSO NOTED IN THE ORDER THAT THE ADJOURNMENT IS RECEIVED ON 03.10.2011, WOULD PROVE THE CONTENTION OF THE ASSES SEE THAT THE ASSESSEE ATTENDED THE PROCEEDINGS ON 27.09.2011. AGAIN THE MATTER WAS FIXED FOR HEARING ON 02.01.2013 AND THE NOTICE WAS SERVED UPON THE PEON OF THE ASSESSEE WHEN EDUCATIONAL INSTITUTION OF THE ASSESSEE WAS UNDER W INTER VACATION AND WAS CLOSED. THE PEON HAS GIVEN THE AFFIDAVIT THAT THE NOTICE FO R HEARING WAS HANDED OVER TO THE ASSESSEE ON OPENING OF SCHOOL ON 10.01.2013. THUS, THE ASSESSEE WAS NOT AWARE OF THE SERVICE OF THE NOTICE ON THE PEON AND WAS AWARE OF THE SERVICE OF THE NOTICE ONLY AFTER PASSING OF THE IMPUGNED ORDER. THUS, THE ASSESSEE HAS NOT BEEN PROVIDED REASONABLE OPPORTUNITY OF BEING HEARD AGAIN BY THE LD. CIT. THEREFORE, THE MATTER REQUIRES RECONSIDERATION AT HIS LEVEL. WE ACCORDING LY SET ASIDE THE ORDER OF THE LD. CIT, GWALIOR AND RESTORE THE MATTER TO HIS FILE WIT H DIRECTION TO RE-DECIDE THE MATTER IN ISSUE AFTER GIVING REASONABLE AND SUFFICI ENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE UNDE RTOOK BEFORE US THAT THE ASSESSEE ITA NO. 58/AGRA/2013 5 WOULD ATTEND THE PROCEEDINGS BEFORE THE LD. CIT AND SHALL NOT GIVE ANY CHANCE OF DEFAULT. WE HOPE, THE UNDERTAKING GIVEN BEFORE US S HALL BE COMPLIED WITH BY THE ASSESSEE AND THE ASSESSEE IS DIRECTED TO MAKE COMPL IANCE OF THE NOTICE OF THE LD. CIT ON THE VERY FIRST DATE OF HEARING. THE LD. CIT IS ALSO DIRECTED THAT THE NOTICE OF HEARING IS SERVED UPON THE ASSESSEE BY GIVING REASO NABLE TIME FOR COMPLIANCE. WITH THESE OBSERVATIONS AND DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY