Fiza Education Society, Bulandshahr V. CIT(A), Ghaziabad

ITA 8217/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4734 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: SHAILENDRA JOHARI; TUSHAR SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A .NO.-8217/DEL/2018 (ASSESSMENT YEAR-2009-10) FIZA EDUCATION SOCIETY, MOHAN KUTI, MAMAN ROAD, BULANDSHAHR, UP. (PAN: AAATF1711B) ( APPELLANT) VS. ITO, WARD (EXEMPTION), GHAZIABAD ( RESPONDENT) APPELLANT BY SH. SHAILENDRA JOHARI, ADV. & SH. TUSHAR SHARMA, ADV. RESPONDENT BY SHRI S.L. ANURAGI, SR. DR ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 28.09.2018 OF THE LD. CIT(APPEALS), GHA ZIABAD RELEVANT TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWIN G GROUNDS OF APPEAL: - 1) BECAUSE PROVISIONS OF SECTION 271(1) OF THE ACT DO NOT APPLY TO THE APPELLANT SOCIETY SINCE THE APPELLANT SOCIETY HAS NEITHER CONCEALED ANY PARTICULARS NOR HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME. 2) BECAUSE LD. CIT(A) ACTED PREMATURELY IN PRONOUNCING A PENALTY ORDER DESPITE THE CORRESPONDING ASSESSMENT ALREADY PENDING IN APPEAL BEFORE HONBLE TRIBUNAL AS ON THE DATE OF PRONOUNCEMENT OF ORDER. 3) BECAUSE LD. CIT(A) HAS ERRED IN PASSING A NON- SPEAKING ORDER TO THE EXTENT THAT THE SUBMISSIONS OF THE APPELLANT SOCIETY IN REVERT 2 TO THE SHOW CAUSE NOTICE WERE NOT REBUTTED OR COUNTERED IN PASSING THE PENALTY ORDER. 4) BECAUSE THE ORDER HAS BEEN PASSED WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT SOCIETY, THEREBY, LD. CIT(A) ACTED AGAINST THE PRINCIPLES OF NATURAL JUSTICE DESPITE THERE BEING NO TIME BARRING LIMITATION BEING IMPOSED IN APPELLANT SOCIETYS CASE FOR PASSING THE SAID ORDER. 5) THE APPELLANT CRAVES LEAVE TO ADD TO ALTER, AMEND OR DELETE ABOVE GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE N OT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT( A) HAS NOT GIVEN PROPER OPPORTUNITY TO ASSESSEE TO PRESE NT HIS CASE AND PASSED THE NON-SPEAKING ORDER. HENCE, HE REQUE STED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQ UATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND NOT OBJECTED THE REQUEST OF T HE LD. COUNSEL FOR THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDER. FOR THE SAKE OF CONVENIENCE, I AM R EPRODUCING HEREUNDER THE RELEVANT FINDING OF THE LD. CIT(A):- 3 .2.4 EXAMINATION OF FACTS REVEALS THAT APPELLANTS CLAIM OF EXEMPTION U/S. 10(23C)(IIIAD) WAS NOT MAINTAINABLE AND TO THAT EXTENT APPELLANT HAD FURNISHED INACCURATE PARTICULARS OF INCOME ATTRACTING PENALTY U/S. 271(1). 2.5 UNDER THE ABOVE FACTS AND CIRCUMSTANCES, I HAVE NO OPTION BUT TO IMPOSE THE PENALTY UNDER SECTION 271(1) OF THE INCOME TAX ACT, 1961 FOR FAILURE TO SUBSTANTIATE THE CLAIM MADE IN THE RETURN OF INCOME. ENHANCEMENT WAS MADE FOR RS. 3,00,007/- TO THE ASSESSED INCOME OF APPELLANT. 100% OF TAX SOUGHT TO BE EVADED BY APPELLANT ON AMOUNT OF INCOME ENHANCEMENT OF RS. 3,00,007/- IS IMPOSED. THE AO SHALL SEPARATELY DEAL WITH PENALTY INITIATED BY HIM IN THE ORDER. ACCORDINGLY, THE AO IS DIRECTED TO ISSUE DEMAND NOTICE AND DIRECT THE APPELLANT TO PAY THE AMOUNT. 5.1 AFTER PERUSING THE AFORESAID FINDING, I AM OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS PASSED A NON-SP EAKING ORDER WITHOUT PROPERLY DISCUSSING IN DETAIL THE FA CTS AND CIRCUMSTANCES OF THE CASE. 5.2 IN THIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT IN THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 4 300 ITR 403 WHEREIN IT HAS HELD THAT EVEN AN ADMIN ISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULES OF NATURA L JUSTICE. 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND RESPECTFULLY FOLLOWING THE PRECEDENT, AS AFORESAID, I REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER EACH AND EVERY ASPECTS OF THE ISSUES INVOLVED IN THE APPEAL AND DECIDE THE SAME AFRESH AND PASS A SPEAKING ORDER BY CONSIDER ALL THE EVIDENCES/DOCUMENTS. NEEDLESS TO ADD THAT THE ASS ESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . HOWEVER, THE ASSESSEE IS DIRECTED TO FILE ALL THE EVIDENCES/DOCUMENTS ETC. BEFORE HIM TO SUBSTANTIATE HIS CASE. ASSESSEE IS ALSO DIRECTED NOT TO TAKE ANY UNNECESSA RY ADJOURNMENT IN THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 15/05/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 15/05/2019 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR 5