Abhinav Sikshan Evam Jan Kalyan Sewa Samiti, Kanpur V. Asstt. Commissioner of Income Tax-I, Kanpur

ITA 729/LKW/2013

• Counselvise Citation: 72923714 RSA 2013
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-01-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 06-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J J MEHROTRA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 69; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 729/LKW/2013 ASSESSMENT YEAR: 2010 - 11 ABHINAV SIKSHAN EVAM JAN KALYAN SEWA SAMITI KAN PUR V. ACIT - I KANPUR PAN: AAOFA2081P (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. J. J. MEHROTRA, ADVOCATE RESPONDENT BY: SHRI. MANOJ KUMAR GUPTA, CIT (DR) DATE OF HEARING: 29.01.2014 DATE OF PRONOUNCEMENT: 31.01.2014 O R D E R PER SUNIL KU MAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1 . THAT THE ID. CIT(A) - II, KANPUR HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DISMISSING THE APPEAL EXPARTE. 2 . THAT THE ID. CIT(A) SHOULD HAVE DECIDED THE APPEAL ON MERITS AND IS WRONG IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHICH IS ERRONEOUS IN LAW AS WELL AS ON FACTS AND CIRCUMSTANCES OF THE CASE. : - 2 - : 3 . THAT THE ID. CIT(A) HAS ERRED IN LA W AND FACTS AND CIRCUMSTANCES OF THE CASE IN DECIDING THE APPEAL EXPARTE WITHOUT CONSIDERING THE STATEMENT OF FACTS, JUDICIAL PRONOUNCEMENTS CITED THEREIN AND ALSO NOT GIVING A FINDING IN RESPECT OF THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT. 4 . THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE FINDING OF THE ASSESSING OFFICER THAT THE APPELLANT SOCIETY IS NOT A CHARITABLE SOCIETY AND HAS CONTRAVENED THE PROVISIONS OF SECTION 13 AND, THEREFORE, NOT ENTITLED TO EXEMPTION UNDER SECTION 145 OF THE INCOME TAX ACT. 5 . THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 2,37,92,100/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PROPERTY MADE BY THE ASSESSING OFFICER UNDER SECTIO N 69 OF THE INCOME TAX ACT, 1961 WITHOUT THERE BEING A WHISPER OF REJECTION OF BOOKS OF ACCOUNT UNDER SECTION 145 OF THE INCOME TAX ACT. 6 . THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 40,00,000/ - MADE BY THE ASSESSING OFFICER BY TREATING THE AMOUNT OF PAYMENTS MADE AS UNEXPLAINED WITHOUT PROPERLY CONSIDERING THE SUBMISSIONS OF THE APPELLANT. 7 . THAT THE ORDER PASSED BY THE ID. CIT(A) IS WITHOUT PROPER OPPORTUNITY AND BAD IN LAW. 8 . THAT THE ORDER PASSED BY THE ID. CTT(A) IS AGAINST THE MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. : - 3 - : 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS PASSED AN EX - PARTE ORDER WITHOUT AFFORDING PROPER OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR PROPER ADJUDICATION OF THE APPEAL AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 . THE LD. D.R., ON THE OTHER HAN D, HAS SUBMITTED THAT THE LD. CIT(A) HAS ISSUED THREE NOTICES TO THE ASSESSEE, BUT THE ASSESSEE HAS NOT RESPONDED TO ANY OF THE NOTICE AND THE LD. CIT(A) WAS FORCED TO PASS EX - PARTE ORDER. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE A UTHORITIES BELOW. IT APPEARS FROM THE ORDER OF THE LD. CIT(A) THAT HE HAS ISSUED NOTICES TO THE ASSESSEE ON THREE TIMES, BUT THERE IS NO FIND ING OF THE LD. CIT(A) WITH REGARD TO THE VALID SERVICE OF NOTICE OF HEARING. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL EX - PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, IN THE INTEREST OF JUSTICE, SET ASIDE HIS ORDER AND RESTORE THE APPEAL TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.1.2014 SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.1.2014 JJ: 2901 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR