Income Tax Officer-2(2), Lucknow V. Kamla Nehru Institute of Child Education, Lucknow

ITA 708/LKW/2013

• Counselvise Citation: 70823714 RSA 2013
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-04-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 18-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: D D CHOPRA
• Keywords: Opportunity of being heard; Benefit of exemption
• Section: 12A; 10B; 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 708/LKW/2013 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER 2(2) LUCKNOW V. KAMLA NEHRU INSTITUTE OF CHILD EDUCATION 1, MOTI MAHAL MARG, HAZRATGANJ, LUCKNOW PAN: AABTK2342N (APP ELL ANT) (RESPONDENT) ITA NO. 709/LKW/2013 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER 2(2) LUCKNOW V. KAMLA NEHRU INSTITUTE OF MANAGEMENT & TECHNLOLOGY 1, M OTI MAHAL MARG, HAZRATGANJ, LUCKNOW PAN: AAAAK7664F (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. R. K. RAM, D.R. RESPONDENT BY: SHRI. D. D. CHOPRA, ADVOCATE DATE OF HEARING: 24.04.2014 DATE OF PRONOUNCEMENT: 02.05 .2014 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A), INTER ALIA, ON COMMON GROUNDS, WHICH ARE AS UNDER: - PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 1 . THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO COMPUTE THE INCOME OF THE ASSE SSEE IN ACCORDANCE WITH SECTION 11 OF THE IT ACT, 1961, EVEN THOUGH THE ASSESSEE HAS NOT FULFILLED THE MANDATORY CONDITION LAID DOWN IN SECTION 12A (1)(B) OF THE IT ACT 1961, AND HAS NOT FILED FORM NO. 10B AS PRESCRIBED IN RULE 17B OF THE INCOME TAX RULES EITHER WITH THE RETURN OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2 . THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DIRECTING THE A.O. TO COMPUTE THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH SECTION 11 OF THE IT ACT 1961, EVEN THOUGH THE AS SESSEE HAS NOT FULFILLED FORM NO. 10 AS PRESCRIBED IN RULE 17 OF THE INCOME TAX RULES ALONG WITH RESOLUTION PASSED BY THE TRUSTEE/GOVERNING BODY, BY WHATEVER NAME, WITH THE RETURN OF INCOME OR BEFORE THE DUE DATE OF FILLING OF RETURN. 2 . THE FACTS IN BRIEF B ORNE OUT FROM THE RECORD ARE THAT THE ASSESSING OFFICER HAS ORIGINALLY COMPLETED ASSESSMENT UNDER SECTION 144 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') ON 30.11.2011 REJECTING THE EXEMPTION CLAIMED BY THE ASSESSEE ON THE GROUND TH AT THE ASSESSEE WAS NOT REGISTERED UNDER SECTION 12A OF THE ACT ; AGAINST WHICH AN APPEAL WAS FILED BEFORE THE LD. CIT(A) AND DURING THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE GOT RECOGNITION UNDER SECTION 12A OF THE ACT FROM THE LD. COMM ISSIONER OF INCOME - TAX. HAVING NOTED THIS FACT, THE LD. CIT(A) VIDE HIS ORDER DATED 11.10.2012 DIRECTED THE ASSESSING OFFICER TO RE - COMPUTE THE INCOME OF THE ASSESSEE - SOCIETY ACCORDING TO THE PROVISIONS OF SECTION 11 OF THE ACT. PURSUANT TO THE DIRECTION S OF THE LD. CIT(A) , THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 251/144 OF THE ACT , BUT WITHOUT AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER AGAIN DENIED BENEFIT OF EXEMPTION UNDER SECTION 11 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : OF THE ACT ON THE GR OUND THAT THE AUDIT REPORT IN FORM NO.10B WAS NOT FILED ALONG WITH THE RETURN OF INCOME. 3 . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE AUDIT REPORT WAS FURNISHED BEFORE THE LD. CIT(A) IN THE FIRST ROUND OF APPEAL. THE AUDIT REPORT WAS NOT FILED BEFORE THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS AS BY THAT TIME REGISTRATION UNDER SECTION 12A OF THE ACT WAS NOT GRANTED TO THE ASSESSEE. THE LD. CIT(A) TOOK COGNIZANCE OF THIS FACT AND DIRECTED THE ASSESSI NG OFFICER TO MODIFY THE ORDER GIVING APPEAL EFFECT TO COMPUTE THE INCOME OF THE ASSESSEE - SOCIETY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT AND AUDIT REPO RT IN FORM NO.10B & ITS ANNEX URES. 4 . AGAINST THESE DIRECTIONS , THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AND SUPPORTED THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS RIGHTLY DENIED BENEFIT OF EXEMPTION UNDER SECTION 11 OF THE ACT AS THE AUDIT REPORT WAS NOT FILED BEFORE HIM EVEN DURING THE RE - ASSESSM ENT PROCEEDINGS. 5 . THE LD. COUNSEL FOR THE ASSESSEE, SHRI. D. D. CHOPRA, ADVOCATE HAS URG ED THAT DURING THE COURSE OF FIRST ROUND OF APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE HAS FILED THE AUDIT REPORT IN FORM NO.10 B ALONG WITH THE RETURN OF INCOME AND HAVIN G TAKEN COGNIZANCE OF THESE DOCUMENTS AND THE REGISTRATION UNDER SECTION 12A OF THE ACT GRANTED TO THE ASSESSEE - SOCIETY BY THE LD. COMMISSIONER OF INCOME - TAX DURING THE PENDENCY OF THE APPEAL, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO C OMPUTE THE IN COME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT, BUT THE ASSESSING OFFICER DID NOT DO THE SAME AND HAS DENIED EXEMPTION UNDER SECTION 11 OF THE ACT ONLY FOR THE SIMPLE REASON THAT THE AUDIT REPORT IN FORM NO.10B WAS NOT FILE D ALONG WITH THE RETURN OF INCOME. WHILE PASSING THE CONSEQUENTIAL ORDER, THE ASSESSING OFFICER HAS NOT EVEN AFFORDED ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : ASSESSEE HAS PLACED HEAVY RELIANCE UPON THE ORDER OF THE LD. CIT (A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS SIMPLY DIRECTED THE ASSESSING OFFICER TO COMPUTE THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT AND AUDIT REPORT IN FORM NO.10B & ITS ANNEXURES. 6 . HAVING HEARD THE RIVAL S UBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT THE LD. CIT(A) IN FIRST ROUND OF APPEAL HAS DIRECTED THE ASSESSING OFFICER TO RE - COMPUTE THE INCOME OF THE ASSESSEE - SOCIETY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT IN THE LIGH T OF THE FACT THAT REGISTRATION UNDER SECTION 12A OF THE ACT WAS GRANTED TO THE ASSESSEE BY THE LD. COMMISSIONER OF INCOME - TAX W.E.F. 1.4.2008 VIDE HIS ORDER DATED 3.4.2012. BUT WHILE ADJUDICATING THE CLAIM OF EXEMPTION, THE ASSESSING OFFICER HAS NOT AFFO RDED ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND HAS DENIED THE BENEFIT OF EXEMPTION UNDER SECTION 11 OF THE ACT FOR THE REASON THAT AUDIT REPORT IN FORM NO.10B ALONG WITH THE RETURN OF INCOME WAS NOT FILED. IT IS ALSO EVIDENT FROM THE ORDER OF THE LD. CIT(A) THAT IN THE FIRST ROUND OF APPEAL THE ASSESSEE HAS FILED AUDIT REPORT IN FORM NO.10B AND HAVING TAKEN COGNIZANCE OF THESE FACTS AND ALSO THE FACT THAT REGISTRATION UNDER SECTION 12A OF THE ACT WAS GRANTED TO THE ASSESSEE BY THE LD. COMMISSIONER OF INCOME - TAX, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO RE - COMPUTE THE INCOME OF THE ASSESSEE AS PER PROVISIONS OF SECTION 11 OF THE ACT, MEANING THEREBY TH AT THE AUDIT REPORT IN FORM NO.10B WAS NOT FILED BEFORE THE ASSESSING OFFICER BUT IT WAS AV AILABLE ON RECORD OF THE LD. CIT(A). MOREOVER, IF THE ASSESSING OFFICER HAS ANY DOUBT, HE COULD HAVE ISSUED A NOTICE TO THE ASSESSEE FOR FURNISHING THE SAME, BUT HE DID NOT DO SO. THE LD. CIT(A) HAVING TAKEN COGNIZANCE OF ALL THESE FACTS, HAS DIRECTED TH E ASSESSING OFFICER TO RE - COMPUTE THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE ACT AND THE AUDIT REPORT IN FORM NO.10B & ITS ANNEXURES. SINCE THE MATTER HAS BEEN SENT TO PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : THE ASSESSING OFFICER FOR RE - ADJUDICATION OF TH E ISSUE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). WE, THEREFORE, CONFIRM THE SAME. 7 . IN THE RESULT, APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2.5.2014. S D/ - S D/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 2 ND MAY , 2014 JJ: 2404 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )