M/S. KHOJA STUDENT LEAGUE, MUMBAI V. THE DIT (E),

ITA 668/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7632 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 02-03-2010
• Assessment Year: misc
• Appeal Filed On: 29-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K PAHWALKESHAV PRASAD
• Keywords: Reasonable cause; Tax effect; Set aside
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI D. K. AGARWAL, JM AND SHRI T.R. SOOD, AM I.T.A.NO. 668/MUM/2008 M/S. KHOJA STUDENT LEAGUE, C/O. SETH & CO., KRISHNA NIWAS, NEAR EDWARD CINEMA, KALBHADEVI, MUMBAI 400 002. PAN : AAATK 0040 J VS. DIRECTOR OF INCOME-TAX (EXEMPTION), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : S/SHRI S.K. PAHWAL/KESHAV PRASAD O R D E R PER T.R. SOOD, AM: IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUND: THE DIRECTOR OF INCOME-TAX (EXEMPTIO N), MUMBAI, ERRED IN NOT GRANTING REGISTRATION TO THE APPELLANT TRUST U/S. 12AA READ WITH S. 12A OF THE INCOME-TAX ACT, 1961. 2. BOTH PARTIES WERE HEARD. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THAT IN THIS CASE THE REGISTRATION WAS DENIED BY PASSING EX PARTE ORDER B Y THE DIRECTOR OF INCOME-TAX (EXEMPTION) . WE FURTHER FIND THAT SUFFICIENT OPPOR TUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE AND THEREFORE, WE SET ASIDE THE ORDER PASS ED BY THE DIRECTOR OF INCOME- TAX (EXEMPTION) AND REMIT THE MATTER BACK TO HIS FI LE WITH DIRECTION TO RE-EXAMINE THE ISSUE AFTER PROVIDING ADEQUATE OPPORTUNITY TO T HE ASSESSEE OF BEING HEARD. ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROC EEDINGS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 3 RD DAY OF MARCH 2010. SD. SD. (D.K. AGARWAL) (T. R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 3 RD MARCH, 2010. KN ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 2 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE DIT-(EXEMPTION),6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 12. 4. THE DR C BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 3 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 02.03.2010 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 02.03.2010 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/A M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 4 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 , RECEIVED BACK. IT IS THEREFORE, PRESUMED THAT THE ASSESSEE IS NOT INT ERESTED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (2 23 ITR 480)(MP) THAT IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-BOOKS, SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT B OUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD., 38 ITD 320 (DEL.) IS A LSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRESENT APPEAL BEFORE THE TRIBUNAL, ACCORDINGLY THE APPEAL OF THE ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 5 ASSESSEE IS DISMISSED AS UNADMITTED. THE ASSESSEE, IF SO ADVISED, SHALL BE FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE ASSESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON- APPEARANCE ON THE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION RECALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTA INED TO CONCEALMENT OF INCOME OF RS. 1,02,744/- AND THE PENALTY LEVIED WAS RS. 22 ,248/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY, 2008 THE APPEAL IS NOT MAINTAINABLE, TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTA INING MONETARY LIMITS FOR FILING OF APPEALS, IN THE CASE OF PENALTY ORDERS, WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY, 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY, 2009. KN COPY TO: 5. THE ASSESSEE 6. THE ITO-26(1)(2), MUMBAI. 7. THE CIT, CITY-XXVI, MUMBAI 8. THE CIT(A)-XXVIII, MUMBAI 9. THE DR, G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 6 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO.668/M/08 M/S. KHOJA STUDENT LEAGUE 7