Swayam Foundation , Ahmedabad V. Income tax Officer(Exemp.), Bhavnagar

ITA 615/AHD/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4664 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 20-11-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 09-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HITESH KUMAR ALWANI
• Keywords: Opportunity of being heard; Initiation of penalty proceedings
• Section: 69C; 80G

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Ms. Suchitra Kamble, Judicial Member Swayam Foundation, Ahmedabad PAN: AAFAS3421F (Appellant) Vs The Income Tax Officer (Exempt), Bhavnagar (Respondent) Assessee by: Shri Hitesh Kumar Alwani, A.R. Revenue by: Shri Yogesh Mishra, Sr. D.R. Date of hearing : 12-12-2023 Date of pronouncement : 15-12-2023 आदेश /ORDER This is an appeal filed against the order dated 07-06- 2023 passed by National Faceless Appeal Centre (NFAC), Delhi for assessment year 2017-18. 2. The grounds of appeal are as under:- ITA No. 615/Ahd/2023 Assessment Year 2017-18 I.T.A No. 615/Ahd/2023 A.Y. 2017-18 Page No. Swayam Foundation vs. ITO (Exempt) 2 “1 Appeal No- CIT(A), Ahmedabad-9/10412/2019-20 dismissed vide DIN & order No.ITBA/NFAC/S/250/2023-24/1053599156(1) dated 07/06/2023 without giving opportunity of being heard 2 The order of the learned assessing officer is erroneous on the facts and in the law in adding an amount of Rs. 37,27,820/- in respect of expenses claimed disregarding the submission of assessee. On the facts and in the circumstances of t he learned assessing officer ought to have accepted the returned income 3 The learned assessing officer is not justified in disallowing amount of Rs. 37,27,820/- as the appellant has duly filed audited financial statement along with income tax return and audit report in Form No. 10B within the due date. 4 The assessee has replied to all the notices issued from time to time through ITBA. However, the show cause notice no. ITBA/AST/F/143(3) SCN/2019-2020/1021378143(1) dated 30-11- 2 019 for disallowing amount of Rs. 37,27,820/- for hearing on 05- 12-2019 was received physically on 12-12-2019 for which the time limit for submission was already lapsed on the date of receiving notice. As it was time barring assessment, on 16-12-2019 the learned assessing officer has passed the order without giving any opportunity of being heard. Moreover, within such short time it was not possible for the assessee to submit further Evidences. 5 The Learned Assessing Officer has erred in law and on facts in adding an amount of Rs. 3727820 by invoking section 69C as the amount of Rs. 3727820 is voluntary contribution received and not the expenditure incurred. The total expenditure incurred which is claimed as deduction is Rs. 3095082 which is also shown in the 10- B. 6 The Learned Assessing Officer has erred in law and on facts by invoking section 69C as it is applicable in the case when the assessee has incurred any expenditure and offers no explanation about the source of such expenditure. In the present case source of expenditure is already shown in the audited books of account and which is duly accounted in the books. The source of expenditure is voluntary contribution received which is duly accounted and audited for which audited financial statements and audit report in Form no. 10B has been duly submitted. I.T.A No. 615/Ahd/2023 A.Y. 2017-18 Page No. Swayam Foundation vs. ITO (Exempt) 3 7 The Learned Assessing Officer has erred in law and on facts for initiation of penalty proceedings u/s 271AAC(1) of The I.T. Act. 8 The appellant claims leave to add, alter and / or amend all and/or any of the grounds of appeal before or at the time of hearing of the appeal. 9 In addition to ground of CIT(A), We have applied grounds based on Assessment order issued by ASSESSING OFFICER as well. 10 Additional documents/evidences could be submitted but no additional opportunity of being heard given by CIT (A) or by AO so requesting you to allow & Application Restored.” 3. The Trust has filed its return of income for assessment year 2017-18 on 31-10-2017 which was revised on 30-03- 2019 declaring total income at Rs. 19,740/-. The case was selected for scrutiny under CASS for complete scrutiny to verify the obtained 80G and large increase in total voluntary contribution. The Assessing Officer made addition u/s. 69C of the Act amounting to Rs. 37,27,820/-. 4. Being aggrieved by the assessment order, the assessee filed appeal before CIT(A). 5. The ld. A.R. submitted that there is a delay of four days in filing the present appeal and due to the earlier representation made was not adequate and proper. The details related to 80G and large increase in voluntary contributions were not submitted before the Assessing Officer as well as the assessee was not represented before the CIT(A) I.T.A No. 615/Ahd/2023 A.Y. 2017-18 Page No. Swayam Foundation vs. ITO (Exempt) 4 and the order of CIT(A) is ex-parte. The A.R. submitted that the matter may be remanded back to the file of the A.O. for proper adjudication of the evidences which are filed before the Tribunal as additional evidences and the same may be admitted and after verification and hearing the assessee, the Assessing Officer take cognizance a per due process of law. 6. The ld. D.R. relied upon the assessment order and the order of the CIT(A). 7. Heard both the parties and perused all the relevant materials available on record. It is pertinent to note that due to the fact that the pandemic period and professional appointed by the assessee was inattentive on its part. The assessee was not properly represented either before the A.O. as well as before CIT(A). It will be appropriate to remand back this matter to the file of A.O.. The additional evidences filed before the Tribunal are admitted as well as the delay in filing before the Tribunal is condoned. The Assessing Officer is directed to take cognizance of the additional evidences and verify the same as per Income Tax Act and adjudicate the same as per law. Needless to say, the assessee be given opportunity of hearing by following the principles of natural justice. I.T.A No. 615/Ahd/2023 A.Y. 2017-18 Page No. Swayam Foundation vs. ITO (Exempt) 5 8. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 15-12-2023 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad : Dated 15/12/2023 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद