BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY, JAMMU V. INCOME TAX OFFICER WARD 1(1), JAMMU

ITA 783/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6380 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-12-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Charitable institution
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO. 783/ASR/2017 ASS ESSMENT YEAR: 2009-10 BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY, 1 ST FLOOR SUNJWAN MORH, ABOVE PALI FURNITURE, JAMMU [PAN: AABTB 1171G] VS. INCOME TAX OFFICER, WARD 1(1)- JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. N. ARORA ( ADV.) RESPONDENT BY: SH. CHARAN DAS (D.R.) DATE OF HEARING: 20.12.2018 DATE OF PRONOUNCEMENT: 15.01.201 9 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, AMRITSAR ( CITA) FOR SHORT) DATED 27.09.2017 CONFIRMING, IN THE ABSENCE OF REPRESENTA TION BEFORE HIM, THE ASSESSMENT UNDER SECTION 144 DATED 29.12.2011 FOR ASSESSMENT Y EAR (A.Y.) 2009-10, ASSSESSING THE ASSESSEES INCOME AT RS.8,37,724/-, I.E., AS AGAINST THE RETURNED INCOME OF NIL. 2. THE APPEAL RAISES SEVERAL GROUNDS CHALLENGING TH E ACTION OF THE LD. CIT(A) AS WELL AS, IN FACT, ALSO OF THE ASSESSING OFFICER (AO ). THE ONLY PRAYER, HOWEVER, OF THE LD. COUNSEL FOR THE ASSESSEE, SH. ARORA, WAS TH AT THE IMPUGNED ORDER BEING AN EX PARTE ORDER, THE MATTER BE RESTORED BACK TO THE FILE OF T HE LD. CIT(A), PARTICULARLY ITA NO. 783/ASR/2017 (AY 2009-10) BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY V. ITO 2 CONSIDERING THAT THE ASSESSMENT, PRIOR THERETO, IS AN ASSESSMENT U/S. 144, I.E., A BEST JUDGMENT ASSESSMENT. ON BEING POINTED OUT THAT MORE THAN ABUNDANT OPPORTUNITY OF HEARING HAVING BEEN PROVIDED, ISSUING, AS STATED, 1 5 (FIFETEEN) NOTICES, NONE OF WHICH HAD COME BACK UNSERVED, INCLUDING SERVICE OF TWO OF THEM THROUGH THE NOTICE SERVER (REFER PG. 3 OF THE IMPUGNED ORDER), SH. ARORA WOULD SUBMIT THAT AS PER HIS INSTRUCTIONS, MOST OF THESE NOTICE WERE NOT SERVED ON THE ASSESSEE. BESIDES, EVEN AS STATED BEFORE THE LD. CIT(A), SMT. SHAMAS U L NISA, THE CHAIRPERSON (OF THE ASSESSEE-SOCIETY), WAS FACING HEALTH ISSUES, WHICH WAS RESPONSIBLE FOR THE NON- ATTENDANCE, TO WHATEVER EXTENT. HE WAS REQUIRED TO FURNISH AN AFFIDAVIT IN SUPPORT OF HIS CLAIMS AND, SIMULTANEOUSLY, THE LD. DEPARTME NTAL REPRESENTATIVE (DR) REQUIRED TO PRODUCE THE RECORD OF THE FIRST APPELLA TE AUTHORITY SO AS TO VERIFY THE SAME AS WELL AS THE ASSERTIONS BY THE LD. CIT(A), S TATING OF A COMPLETE NON- REPRESENTATION BY THE ASSESSEE BEFORE HIM THROUGHOU T THE OVER FIVE YEARS THE APPEAL WAS PENDING FOR DISPOSAL BEFORE HIM, SAVE A SOLITAR Y ADJOURNMENT LETTER. THE ASSESSEE, HOWEVER, DESPITE BEING ALLOWED MORE THAN REASONABLE TIME FOR THE SAME, DID NOT FURNISH ANY AFFIDAVIT, CITING THE ILL HEALT H OF ITS CHAIRPERSON AS THE REASON, MERELY REITERATING THAT THE IMPUGNED ORDER BE SET A SIDE IN THE INTEREST OF JUSTICE, CONSIDERING THAT IT IS AN EX PARTE ORDER BY THE LD. CIT(A). IF ONLY THE AO HAD CALLED FOR THE MEMORANDUM OF ASSOCIATION (MOU) (AND BYELAW S, ETC.) OF THE ASSESSEE- SOCIETY, WHICH HE DID NOT, SH. ARORA WOULD ADD, IT WOULD BECOME CLEAR THAT IT EXISTS SOLELY FOR EDUCATIONAL PURPOSES AND NOT FOR THE PUR POSE OF PROFIT. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE ASSESSEE BEFORE US HAS NOT MADE OUT ANY CASE JU STIFYING THE COMPLETE NON REPRESENTATION BEFORE THE FIRST APPELLATE AUTHO RITY, WHO HAS IN FACT NOT ADMITTED THE ASSESSEES APPEAL, TIME BARRED BY 143 DAYS. THE ASSESSEE, AGAIN, HAS NOT MADE OUT ANY CASE BEFORE US QUA THE NON-CONDONATION OF THE DELAY BY THE FIRST APPEL LATE ITA NO. 783/ASR/2017 (AY 2009-10) BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY V. ITO 3 AUTHORITY. HOW COULD, IN THAT VIEW OF THE MATTER, W E POSSIBLY ANSWER THE ASSESSEES GROUNDS 3 AND 4 BEFORE US, CHALLENGING THE SAID NON -CONDONATION BY THE LD. CIT(A), MUCH LESS IN ITS FAVOUR, AND PROCEED TO CO NSIDER THE IMPUGNED ORDER ON MERITS. THE ASSESSEES SOLE PRAYER FOR A SET ASIDE (OF THE IMPUGNED ORDER) COULD AGAIN ONLY BE CONSIDERED UPON REVERSING HIS DECISIO N IN DECLINING TO CONDONE THE DELAY IN PREFERRING ITS APPEAL BY THE ASSESSEE BEF ORE HIM. IN FACT, THE LD. CIT(A) WAS UNDER THE CIRCUMSTANCES NOT OBLIGED TO CONSIDER THE ASSESSEES CASE ON MERITS, WHICH WOULD ARISE OR FOLLOW ONLY WHERE HE ADMITS TH E ASSESSEES APPEAL BEFORE HIM, OR IS DIRECTED TO DO SO BY A HIGHER FORUM. WE ARE, AS AFORE-STATED, UNABLE TO ISSUE ANY SUCH DIRECTION IN THE ABSENCE OF ANY CASE HAVING BEEN MADE OUT BEFORE US QUA THE SAID NON-ADMISSION. THE CONSIDERATION BY THE L D. CIT(A) OF THE ASSESSEES APPEAL ON MERITS COULD THEREFORE ONLY BE REGARDED A S WITHOUT PREJUDICE. IN FACT, IN THIS REGARD, WE FIND NO ADJUDICATION BY HIM ON MERI TS. EVEN AS HE STATES OF HAVING DECIDED IT ALSO ON MERITS, HE MERELY ENDORSES THE A SSESSMENT IN VIEW OF THE ASSESSEES NON-REPRESENTATION BEFORE THE ASSESSING OFFICER. THE SAME, NOT INVALID IN PRINCIPLE, SHOULD PREFERABLY REFLECT HIS APPLICA TION OF MIND ON THE ISSUES ARISING AS WELL AS THE UPHOLDING, FOR THE REASONS STATED TH EREIN, OF THE INFERENCES DRAWN BY THE AO. BEARING IN MIND THE FUNDAMENTAL NEED OF HEARING, AT LEAST AT ONE STAGE, WE, AWARE OF THE DECISION IN CIT V. SAS EDUCATIONAL SOCIETY [2009] 319 ITR 65 (P&H), YET CONSIDER, ON AN OVERALL CONSPECTUS OF TH E CASE, TO RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR ALLOWING A FINAL OPPORTUNITY OF HEARING TO THE ASSESSEE, WHO HAS ASSURED US FULL COOPERATION IN TH E MATTER, BEFORE HIM. WE ARE CONSCIOUS THAT AN ADJUDICATING AUTHORITY CAN ONLY E XTEND AN OPPORTUNITY OF HEARING, AS ALSO POSED BY THE BENCH TO THE LD. COUNSEL DURIN G HEARING, TO NO PROPER ANSWER, AND IT IS ONLY UPON THE ASSESSEE (PARTIES) TO AVAIL THE SAME. WE MAKE IT CLEAR THAT WHILE ORDINARILY SUCH AN INDULGENCE ON OUR PART WOU LD HAVE BEEN ACCOMPANIED BY ITA NO. 783/ASR/2017 (AY 2009-10) BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY V. ITO 4 A STIPULATION AS TO COST, WE HAVE RESTRAINED TO IMP OSE IT BY GIVING THE ASSESSEE THE BENEFIT OF DOUBT OF BEING CONSTRAINED FOR SUFFICIEN T REASON/S IN MAKING APPEARANCE BEFORE THE REVENUE AUTHORITIES. THE ASSESSEE SHALL PLEAD ITS CASE BOTH AS ON THE ADMISSION OF ITS APPEAL AS WELL AS ON THE MERITS OF THE ASSESSMENT AS MADE, BEFORE HIM, IN WHICH CASE THE LD. CIT(A) SHALL DECIDE BOTH THESE ASPECTS ON MERITS. WE SAY SO AS HIS ORDER BEING APPEALABLE, A DECISION RE VERSING THE NON ADMISSION BY HIM, I.E., ASSUMING SO, WOULD WARRANT A REMISSION B ACK TO HIS FILE. NEEDLESS TO ADD, THE FIRST APPELLATE AUTHORITY IS ONLY OBLIGED TO EX TEND A REASONABLE OPPORTUNITY TO THE ASSESSEE, AND NOT PROLONG THE PROCEEDINGS, AS F OR OVER 5 YEARS IN THE FIRST INSTANCE, AND DECIDE ON THE BASIS OF THE MATERIAL O N RECORD, I.E., IN FACE OF A CONTINUING NON-COOPERATIVE ATTITUDE BY THE ASSESSEE . THE MOA (PB PGS. 13-20), CANNOT, IN VIEW OF IT HAVING NOT BEEN FILED AT ANY STAGE, BE REGARDED AS A PART OF THE RECORD. WE MAY, HOWEVER, IN VIEW OF THE DIVERSE OBJ ECTS STATED THEREIN, BEFORE PARTING, BRING TO THE NOTICE OF THE PARTIES THE DEC ISION BY THE AMRITSAR BENCH OF THE TRIBUNAL IN SUTLEJ EDUCATIONAL CHARITABLE TRUST V. CIT (EXEMPTI ONS) (IN ITA NO. 676/ASR/2017, DATED 09/5/2018), HOLDING THAT THE EX EMPTION U/S. 10(23C)(IIIAD)/(VI) IS QUA AN INSTITUTION, I.E., IS UNIT, AND NOT ASSESSEE, S PECIFIC. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 15, 2 019 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 15.01.2019 /GP/SR PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: BORDER STATE WOMEN EDUCATION AL & WELFARE SOCIETY, 1 ST FLOOR SUNJWAN MORH, ABOVE PALI FURNITURE, JAMMU (2) THE RESPONDENT: INCOME TAX OFFICER, WARD 1( 1)- JAMMU ITA NO. 783/ASR/2017 (AY 2009-10) BORDER STATE WOMEN EDUCATIONAL & WELFARE SOCIETY V. ITO 5 (3) THE CIT(APPEALS)-1, AMRITSAR (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORD ER