MAHAVIR EDUCATION TRUST, MUMBAI V. ASSISTANT COMMISSIONER INCOME TAX (E)-2(1), MUMBAI

ITA 6167/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4242 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Depreciation; Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(3); 12A; 10B; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI AMARJIT SINGH, J M / I.T.A. NO. 6167 /MUM/2017 ( / ASSESSMENT YEARS: 201 2 - 13 ) MAHAVIR EDUCATION TRUST C/O SHAH & ANCHOR KUTCHHI ENGG. COLL EGE, WAMAN TURAM PATIL MARG, NEAR DUKE CO., CHEMBUR, MUMBAI - 400088 . / VS. ACIT (E) - 2(1) 5 TH FLOOR, PIRAMAL CHAMBER, PAREL, MUMBAI - 400012. ./ ./ PAN/GIR NO. : AAATM5568P ( / APPELLANT ) .. ( / R ESPONDENT ) / DAT E OF HEARING: 05 .0 2 .2019 /DATE OF PRONOUNCEMENT: 13 . 03 .2019 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 07 .0 8 .2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2012 - 1 3 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - I. (A) ON THE FACTS AND IN THE CIRCUMSTANCES, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN REJECTING THE CONDONATION OF DELAY IN FILING THE APPEAL HOLDING THAT THE TRUSTEE HAS NOT GIVEN ANY EVIDENCE TO SHOW THAT HE WAS OUT OF MUMBAI. (B) THE LEARNED CIT (A) TAILED TO APPRECIATE THAT THE TRUSTEE HAS FILED AFFIDAVIT STATING THAT HE WAS OUT OF MUMBAI SINCE THE TRUSTEE HAS NOT HAVING ANY EVIDENCE FOR TO SHOW THAT HE WAS OUT O F MUMBAI. 2. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEANED ASSESSING OFFICER AND CIT (A) ERRED IN REJECTING THE CLAIM OF RS.1,83,22.5611 - ON ACCOUNT OF DEPRECIATION WHICH SHOULD BE ALLOWED IN FULL. REVENUE BY: SHRI D. G. PANSARI (SR. AR) ASSESSEE BY : SHRI J. K. SHAH ITA NO. 6167 /M/2017 A. Y. 2 01 2 - 1 3 2 (B) THE APPELLANT PRAYS THAT THE C LAIM OF DEPRECIATION IS NOT DOUBLE DEDUCTION. C THE CLAIM OF DEPRECIATION IS ON THE ASSETS WHICH HAVE TO BE FULLY ALLOWED AS THE APPLICATION OF INCOME. (D) THE APPELLANT PRAYS THAT THE LEARNED ASSESSING OFFICER ERRED IN REJECTING THE CLAIM MADE ON ACCOU NT OF DEPRECIATION WHICH SHOULD BE ALLOWED IN FULL. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OR ALL OF THE GROUNDS OF APPEAL . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT IS A TRUST REGISTERED WITH DIT(E), MUMBAI U/S 12A UND ER REGISTRATION NO. TR/19085 DATED 25.11.1984 AND WITH CHARITY COMMISSIONER, MUMBAI VIDE REGISTRATION NO. E - 9648(BOM). THE APPELLANT FILED ITS RETURN OF INCOME ON 12.09.2012 ALONG WITH THE INCOME & EXPENDITURE ACCOUNT, BALANCE - SHEET AND AUDIT REPORT IN FOR M 10B DECLARING TOTAL INCOME TO THE TUNE OF RS. NIL. HOWEVER, THE AO COMPLETED THE ASSESSMENT VIDE ORDER DATED 25.02.2015 U/S 143(3) OF THE I.T. ACT, 1961 AT TAXABLE INCOME OF RS. NIL. IN THE ASSESSMENT ORDER, THE AO DISALLOWED THE DEPRECIATION OF RS.1,83, 22,561/ - CLAIMED BY THE ASSESSEE. THEREAFTER, THE APPELLANT HAS PREFERRED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL BY NOT CONDONING THE DELAY OF 4 DAYS, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4 . WE HAVE HEARD THE ARGUME NT AND ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE CIT (A) DID NOT CONDONE THE DELAY OF 4 DAYS WHILE THE PROPER EXPLANATION WAS GIVEN BEING THE ASSESSEE WAS OUT OF STA TION ON ACCOUNT OF RELIGIOUS CEREMONY AND IN THIS REGARD THE AFFIDAVIT WAS ALSO FILED, THEREFORE, THE DELAY IS LIABLE TO BE CONDONING IN THE INTER EST OF JUSTICE . IT IS ALSO ARGUED THAT THE MATTER OF CONTROVERSY IS REQUIRED TO BE DECIDED ON MERITS IN THE INTEREST OF JUSTICE, THEREFORE, THE CIT(A) IS REQUIRED TO BE DIRECTED TO DECIDE THE APPEAL ON MERITS. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORDER DATED 07.08.2017 IN QUESTI ON, WE ITA NO. 6167 /M/2017 A. Y. 2 01 2 - 1 3 3 NOTICE D THAT THE CIT(A) DID NOT CONDONE THE DELAY OF 4 DAYS AND DISMISSED THE APPEAL WITHOUT DECIDING THE CASE ON MERITS. THE AFFIDAVIT FILED BY ASSESSEE IS ON RECORD WHICH SPEAKS THAT THE ASSESSEE WAS OUT OF STATION ON ACCOUNT OF RELIGIOUS CEREMONY . THE DELAY IS NOT SO LONG. THE CASE HAS NOT BEEN DECIDED ON MERITS. IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY AND SET ASIDE THE FINDING OF THE CIT(A) ON THIS ACCOUNT AND RESTORED THE APPEAL BEFORE THE CIT(A) CONCERNED TO DECIDE THE MATTER OF CONTRO VERSY AFRESH ON MERITS BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 5 . IN THE RESULT, THE APPEA L OF THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 .0 3 .2019 . SD/ - ( SHAMIM YAHYA ) SD/ - (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 13 .03 .2019 V I JAY 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//