DCIT (Exemption), Ghaziabad V. M/s. Dayanand Dinanath Group of Institutions Educational Society, Kanpur

ITA 6250/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4178 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 05-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1); 12A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.6250/DEL/2016 A.Y. : 2013-14 DCIT (EXEMPTION) CIRCLE GHAZIABAD ROOM NO. 105, 1 ST FLOOR, CGO-II, KAMLA NEGHU NAGAR, GHAZIABAD VS. DAYANAND DINANATH GROUP OF INSTITUTIONS EDUCATIONAL SOCIETY, 113/18, SWAROOP NAGAR, KANPUR (PAN: AAAAR6181L) (ASSESSEE) (RESPONDENT) REVENUE BY : MS. ASHIMA NEB, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THIS APPEAL AGAINST THE IMPUGN ED ORDER DATED 01.6.2016 OF THE LD. CIT(A)-II, KANPUR. 2. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER :- 1. LD. COMMISSIONER OF INCOME TAX (APPEALS)-II KANP UR HAS ERRED IN LAW AND ON THE FACTS & CIRCUMSTANCES OF THE CASE. THE FINDINGS OF THE LD. CIT (A) ARE NOT ACCEPTABLE IN PRI NCIPLE BECAUSE CIT(A)HAS NOT CONSIDERED THE FINDINGS OF THE AO NARRATED' IN THE ASSESSMENT ORDER AS WELL AS BROADLY IN THE REJECTION ORDER DATED 28.03.2016 U/S 12AA(1)(B)(II) OF I.T.ACT, 2 1961 OF THE CIT(E), LUCKNOW. LD.CIT(A) HAS NOT APPRE CIATED THE FACT MENTIONED IN CONSEQUENTIAL FACTUAL FINDING O F THE CIT(E) ORDER DATED 28.03.2016 U/S 12AA(1)(B)(II) OF IT ACT, 1961 THAT THE CLAIM OF THE APPLICANT FOR REGISTRATION US/12AA ON BASIS-OF FORM NO 1OA CLAIMED TO HAVE BEEN FILED B EFORE JCIT 1, KANPUR ON 22.08.2008 HAS BEEN FOUND TO BE FA LSE AND ASSESSEE WAS NOT GRANTED REGISTRATION U/S 12A. ASSE SSEE SOCIETY SHOULD HAVE MOVE SEPARATE APPEAL TO APPROPRI ATE AUTHORITY AGAINST THE REJECTION ORDER DATED 28.3.20 16 U/S. 12AA(1)(B)(II) OF THE I.T. ACT OF THE LD. CIT(E), LUC KNOW. 2. ACTION OF THE AO IN TREATING TH AS AOP WAS DELETE D INSPITE OF THE REJECTION ORDER DATED - 28.03.2016 U/S 12AA(1)(B)(II) OF IT. OF CIT(EXEMPTION), LUCKNOW AN D TREATED THE SOCIETY AS TRUST WITH ALL THE BENEFITS OF EXEMPTION TILL AO RECEIVES A FORMAL COPY OF ORDER GRANTING THE REGISTRATI ON. ADDITION ON ACCOUNT OF INCOME OVER EXPENDITURE AS S HOWN IN THE I & E A/C AMOUNTING TO RS. 1,24;-53,625; AND ADD ITION ON ACCOUNT OF ENTIRE AMOUNT OF. RS. 25,00,000/: RECEIVED AS CORPUS FUND IN ABSENCE OF REGISTRATION U/S 12AOF IT ACT, 1961- WERE IMPLIEDLY DIRECTED TO BE DELETED BY IGNORING THE FACTUAL, FINDING OF THE CIT(EXEMPTION) REJECTION ORDER DATED 28.03.2016 U/S 12AA(1)(B)(II) OF IT.ACT, 1961. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED HERE, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE S AKE OF BREVITY. 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 3 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE P RESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECID ING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS , ESPECIALLY THE ORDER OF THE LD. CIT(A). WE FIND THAT ASSESSEE FIL ED RETURN SHOWING NIL INCOME ON 20.9.2013. THEREAFTER THE CASE OF THE ASS ESSEE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY THE STATUTORY NOTICES U/S. 143(2) DATED 22.9.2014 AND NOTICE DATED 6.4.2015 U/S. 142(1) OF THE INCOME TAX ACT, 1961 WERE ISSUED. IN RESPONSE THEREOF, THE ASSESS EES REPRESENTATIVE ATTENDED THE PROCEEDINGS AND FILED WRITTEN SUBMISSI ONS/ EXPLANATIONS ALONGWITH BOOKS OF ACCOUNTS, BILL VOUCHER ETC. THE ASSESSEE SOCIETY WAS REGISTERED WITH THE REGISTRAR OF SOCIETY OF UP ON 1 0.11.2009 AND COPY OF RENEWAL GRANTED FROM 18.9.2012 FOR A PERIOD OF 5 Y EARS WAS FILED. THE ASSESSEE WAS REQUIRED TO FURNISH THE COPY OF REGIST RATION GRANTED U/S. 12A OF THE ACT. IN THIS REGARD, ASSESSEE FILED THE COPY OF FORM 10A APPLICATION MOVED FOR THE REGISTRATION U/S. 12A BUT IT COULD NO T PRODUCE THE REGISTRATION CERTIFICATE U/S. 12A OF THE ACT GRANTE D TO IT. THE REGISTRATION U/S. 12A OF THE ACT IS NOT AVAILABLE TO THE ASSESSE E FOR THE YEAR UNDER CONSIDERATION I.E. FOR THE AY 2013-14. ACCORDINGLY, THE INCOME OF THE ASSESSEE WAS ASSESSED IN THE STATUS OF AOP. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ENGAGED IN RUNNING EDUCATIONAL INSTITUTION. THE ASSESSEE HAS SHOWN G ROSS RECEIPTS OF RS. 5,55,29,806/- AND SHOWN EXCESS OF INCOME OVER EXPEN DITURE OF RS. 1,28,66,308/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS AO NOTICED THAT ASSESSEE SOCIETY HAS RECEIVED CORPUS FUNDS OF RS. 25,20,000/- DURING THE YEAR UNDER CONSIDERATION WHICH HAS BEEN SHOWN I N ITS BALANCE SHEET 4 FOR THE FY 2012-13. ACCORDINGLY, THE ASSESSEES CO UNSEL WAS ASKED TO EXPLAIN AS TO WHY NOT THIS AMOUNT MAY BE TREATED AS INCOME AS THE ASSESSEE DOES NOT HAVE ANY REGISTRATION U/S. 12A OF THE ACT, BUT ASSESSEES COUNSEL DID NOT GIVE SUFFICIENT REPLY O N THIS ISSUE. HENCE, THE AO COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ACT ON THE TOTAL INCOME OF RS. 1,53,86,308/- AND ENTIRE AMOUNT RECEIVED AS CORPUS FUND AMOUNT TO RS. 25,20,000/- WAS ADDED TO THE INCOME OF THE A SSESSEE VIDE ORDER DATED 23.2.2016. HOWEVER, IN APPEAL THE LD. CIT(A)- II KANPUR, BY RELYING UPON THE VARIOUS CASE LAWS HAS ALLOWED THE APPEAL O F THE ASSESSEE BY HOLDING THAT ONCE AN APPLICATION IS MADE UNDER THE SAID PROVISION AND IN THE CASE THE SAME IS NOT RESPONDED TO WITHIN SIX MO NTHS, IT WOULD BE TAKEN THAT THE APPLICATION IS REGISTERED UNDER THE PROVISIONS AND ACCORDINGLY, DIRECTED THE AO TO GRANT ALL THE BENE FITS OF EXEMPTION AVAILABLE AS PER LAW TO THE ASSESSEE TILL AO RECEIV ES A FORMAL COPY OF ORDER GRANTING THE REGISTRATION TO THE ASSESSEE. WE FIND CONSIDERABLE COGENCY IN THE CONTENTION RAISED BY THE REVENUE THAT LD. CIT(A)HAS NOT CONSIDERED THE FINDINGS OF THE AO NARRATED IN THE ASS ESSMENT ORDER AS WELL AS BROADLY IN THE REJECTION ORDER DATED 28.0 3.2016 U/S 12AA(1)(B)(II) OF I.T.ACT, 1961 OF THE CIT(E), LUCK NOW AND HE HAS NOT APPRECIATED THE FACT MENTIONED IN CONSEQUENTIAL FAC TUAL FINDING OF THE CIT(E) ORDER DATED 28.03.2016 U/S 12AA(1)(B)( II) OF IT ACT, 1961 THAT THE CLAIM OF THE APPLICANT FOR REGISTRATION U S/12AA ON BASIS-OF FORM NO 1OA CLAIMED TO HAVE BEEN FILED BEFO RE JCIT-1, KANPUR ON 22.08.2008 HAS BEEN FOUND TO BE FALSE AND ASSESSEE WAS NOT GRANTED REGISTRATION U/S 12A. ASSESSEE SOCIETY S HOULD HAVE MOVED SEPARATE APPEAL TO APPROPRIATE AUTHORITY AGAINS T THE REJECTION ORDER DATED 28.3.2016 U/S. 12AA(1)(B)(II) O F THE I.T. ACT OF THE LD. CIT(E), LUCKNOW. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ORDER IS CONTRARY TO THE LAW AND FACTS ON THE FILE, HENCE, I S NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE , WE ARE SETTING ASIDE THE 5 ISSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO T HOROUGHLY CONSIDER THE CONTENTION RAISED IN THE GROUNDS OF APPEAL RAISED B Y THE REVENUE AS MENTIONED IN THE GROUNDS OF APPEAL AND DECIDE THE I SSUE IN DISPUTE AFRESH, AS PER LAW AND THEN PASS A SPEAKING ORDER O N THE SAME, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 04/01/2018. SD/- SD/- [T.S. KAPOOR] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 04/01/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHE S