M/s Shri Balaji Sarkar Sewa Samiti, Kanpur V. Astt. Commissioner of Income Tax-i, Kanpur

ITA 729/LKW/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1300 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 10-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRADEEP MEHROTRA
• Keywords: Exemption for trust; Charitable institution; Set aside
• Section: 271(1)(c); 143(3); 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT ITA NO. 729/LKW/2017 ASSESSMENT YEAR: 2003 - 04 M/S SHRI BALAJI SARKAR SEWA SAMITI VILL. GAUSSIAN, MOOSA NAGAR KANPUR V. INCOME TAX OFFICER (EX EMPTION) KANPUR T AN /PAN : AAAJS2480E (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI PRADEEP MEHROTRA, ADVOCATE RESPONDENT BY: SMT. ALKA SINGH, D.R. DATE OF HEARING: 03 0 6 201 9 DATE OF PRONOUNCEMENT: 04 0 6 201 9 O R D E R THIS IS ASSESSEES APPEAL AG AINST THE ORDER OF THE LD. CIT(A) I, KANPUR, DATED 26/9/2017 FOR THE ASSESSMENT YEAR 2003 - 04, TAKING THE FOLLOWING GROUNDS OF APPEAL: L THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE' ASSESSEE IS CON FUSING THE TWO ISSUES OF CLAIMING 12AA REGISTRATION AND FILING INCORRECT PARTICULARS IN THE RETURN OF INCOME. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE ASSESSEE HAS LOST ON THIS ISSUE BEFORE T HE CIT (A)AS WELL AS I.T.A.T. AND FURTHER THIS ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE WAY BACK IN 2003 MARCH IGNORING THE FACT THAT THE APPEAL BEFORE THE HON'BLE HIGH COURT IS PENDING & THE HON'BLE HIGH COURT DIRECTED THE C.I.T. (EXEMPTION ) TO DISPOS E OFF THE ORIGINAL APPLICATION FILED BY THE APPELLANT .& THE SAME IS STILL PENDING DISPOSAL WITH THE C.I.T.(EXEMPTION) ITA NO.729/LKW/2017 PAGE 2 OF 4 3. THAT THE LEARNED COMM ISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE ASSESSEE WAS NOT ABLE TO PROVID E A REASONABLE EVIDENCE TO ESTABLISH THAT THERE WAS NO DELIBERATENESS IN CREATING THESE BOGUS EXPENSES. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN HOLDING THE APPELLANT WAS NOT ABLE TO ESTABLISH THAT HIS EXPLAN ATION WAS BONAFIDE. 5. THAT THE ID. C .I .T.(A) HAS ERRED ON FACTS IN HOLDING THAT THE EXPLANATION ADVANCED BY THE APPELLANT BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AS WELL IN THE PENALTY PROCEEDINGS WAS NOT FOUND TO BE BONAFIDE. 6. TH AT THE LD. C. I .T.(A) HAS ERRED IN HOLDING THAT THE INCORRECT PARTICULARS WERE GIVEN BY THE APPELLANT DURING THE FILING OF RETURN AND ASSESSEE DELIBERATELY TRIED TO HIDE THE DETECTION OF TRUE PICTURE OF DATE OF APPLICATION AND GRANT OF REGISTRATION U/S 12A. 7. THAT THE ID. C.I.T.(A) IS WRONG IN HOLDING THAT THE EXPLANATION OF THE APPELLANT IS NOTHING BUT AN AFTERTHOUGHT & THE ASSESSEE IS CONFUSING THE TWO ISSUES OF CLAIMING 12AA REGISTRATION AND FILING OF INCORRECT PARTICULARS IN RETURN OF INCOME. 8. THAT TH E ID. C.I.T.(A) HAS ERRED ON FACTS & IN. LAW IN HOLDING THAT 'THERE IS A CLEAR CUT ATTEMPT TO FURNISH INACCURATE PARTICULARS DURING ASSESSMENT PROCEEDINGS BEFORE ME , THERE IS SUFFICIENT REASON THAT THE PENALTY BE IMPOSED ON THE ABOVE GROUNDS. 9. THAT THE L EARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN NOT CONSIDERING THE BRIEF NOTES FILED BEFORE HIM DURING THE COURSE OF HEARING OF THE APPEAL AND HAS NOT ADJUDICATED THE CONTENTIONS RAISED & FILED BEFORE THE CIT(A) - 2, KANPUR. 10. THAT THE ORDER DATED 26.09.2017 PASSED BY THE LEARNED COMMISSIONER OF INCOME (APPEAL) IS ARBITRARY, ERRONEOUS, ILLEGAL & BAD IN LAW LIABLE TO BE QUASHED. ITA NO.729/LKW/2017 PAGE 3 OF 4 2 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME IN THE STATUS OF TRUST, SHOWING INCOME AT NIL. DURING THE ASSESSMENT PROCEEDINGS, THE A.O NOTICED THAT SINCE THE ASSESSEE HA D BEEN GRANTED REGISTRATION UNDER SECTION 12A OF THE ACT WITH EFFECT FROM 1/4/2003, THE SAME WA S NOT APPLICABLE FOR THE YEAR UNDER CONSIDERATION. ACCORDIN GLY , FOR THE YEAR UNDER ASSESSMENT, THE SOCIETY WAS NOT TREATED AS A CHARITABLE TRUST ELIGIBLE FOR EXEMPTION UNDER SECTION 11 OF THE ACT AND THE ASSESSMENT WAS COMPLETED IN THE STATUS OF AOP AND THE EXEMPTION UNDER SECTIONS 11 & 12 OF THE ACT HAD BEEN DENI ED TO THE ASSESSEE. THE A.O COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON 23/3/2006 , ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS.4,93,250/ - . THE A.O ., VIDE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT , IMPOSED A PENALTY OF R S.1.50 LAKHS. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE ORDER OF THE A.O. 3 . BEFORE THIS BENCH , THE SUBMISSION OF THE LD. A.R. OF THE ASSESSEE WAS THAT THE ASSESSEE HAD FURNISHED A BRIEF NOT E BEFORE THE LD. CIT(A) D URING THE COURSE OF HEARING OF THE APPEAL, BUT HE HAS NOT CONSIDERED THE SAME AND HAS WRONGLY DISMISSED THE APPEAL ; THAT T HEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR DECI DING THE APPEAL AFRESH AFTER CONSIDERING THE BRIEF NOTES FURNISHED BY THE ASSESSEE AND GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE ON THE ORDER OF THE LD. CIT(A). 5 . HEARD. CONSIDERING THE REQUEST O F THE LD. A.R. OF THE ASSESSEE AND IN THE INTEREST OF JUSTICE TO BOTH THE PARTIES , I SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT TH E MATTER TO HIS FILE WITH A DIRECTION TO DECIDE ITA NO.729/LKW/2017 PAGE 4 OF 4 THE SAME AFRESH AFTER CONSIDERING THE BRIEF NOTE FURNISHED BY THE ASSESSE E AND ON AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 / 0 6 /201 9 . SD/ - [ A. D. JAIN ] VICE PRESIDENT DATED: 04 / 0 6 / 201 9 JJ: 0306 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR