Nokia Telecom Sez Park Society, Sriperambudur V. ACIT, Kancheepuram

ITA 907/CHNY/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1433 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Opportunity of being heard

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC D BENCH, CHENNAI . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.907/CHNY/2017 ( [ [ / ASSESSMENT YEAR: 2012-13) M/S. NOKIA TELECOM SEZ PARK SOCIETY, SIPCOT INDUSTRIAL PARK, PHASE-III, A1, NATIONAL HIGHWAY, NO.4, SRIPERUMBUDUR 602 105 VS THE ACIT, KANCHIPURAM CIRCLE, KANCHIPURAM PAN: AAAAN5082C ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE /RESPONDENT BY : SHRI B. SAGADEVAN, JCIT /DATE OF HEARING : 19.08.2018 /DATE OF PRONOUNCEMENT : 16.11.2018 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, CHENNAI DATED 06.03.2017 IN ITA NO.44/CIT(A)-7/2015-16 FOR THE ASSESSMENT YEAR 2012-13 PASSED U/S.250(6) R.W.S.143(3) OF THE ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL:- 2 ITA NO.907/CHNY/2017 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT IS A NON-PROFIT ORGANIZATION FORMED FOR THE MUTUAL BENEFIT OF ITS MEMBERS AND AS SUCH AMOUNTS RECEIVED FROM MEMBERS FOR CARRYING OUT ACTIVITIES ON BEHALF OF AND FOR THE BENEFIT OF ITS MEMBERS IS NOT TAXABLE BY APPLYING THE PRINCIPLE OF MUTUALITY. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD OFFERED THE GROSS AMOUNT OF INTEREST RECEIVED FROM BANKS 1 LT. REFUND AS INCOME AND HAS NOT CLAIMED ANY DEDUCTION, 4. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD MERELY COLLECTED THE ACTUAL EXPENSES INCURRED AND HENCE THERE IS NO SURPLUS OR LOSS IN RESPECT OF ACTIVITIES WITH MEMBERS, WHICH IS TAXABLE. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE GAIN ON EXCHANGE RATES FLUCTUATION IS ADJUSTED 1 REDUCED AGAINST AMOUNT RECOVERABLE FROM RESPECTIVE MEMBERS AND HENCE NO GAIN ACCRUES TO THE ASSESSEE. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.1,67,2501 - TOWARDS THE PROVISION FOR INCOME TAX. THE TAX PAYMENT IS ALSO RECOVERED FROM THE MEMBERS AND THE SAME HAS NOT BEEN CLAIMED AS EXPENDITURE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT WITH THE OBJECTIVE OF CONSTRUCTING, OPERATING AND MAINTAINING OF COMMON AMENITIES & FACILITIES IN NOKIA SPECIAL ECONOMIC ZONE, HOUSING THE MEMBERS UNITS IN SRIPERUMBUDUR, KANCHEEPURAM DISTRICT, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ELECTRONICALLY ON 29.09.2012 ADMITTING TOTAL INCOME OF RS.6,65,640/- THE CASE WAS 3 ITA NO.907/CHNY/2017 SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT WAS ISSUED ON 06.08.2013. FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT ON 30.03.2015 WHEREIN THE LD.AO MADE SEVERAL ADDITIONS. ON APPEAL THE LD.CIT(A) BASED ON THE WRITTEN SUBMISSIONS SUBMITTED BY THE ASSESSEE GRANTED PARTIAL RELIEF TO THE ASSESSEE, HOWEVER SUSTAINED THE SUBSTANTIAL ADDITION MADE BY THE LD.AO. 4. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE ME THAT THE LD.CIT(A) DID NOT AFFORD THE ASSESSEE WITH PROPER OPPORTUNITY OF BEING HEARD AND HAD PASSED AN EX-PARTE ORDER. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD.CIT(A), IN ORDER TO ENABLE THE ASSESSEE TO JUSTIFY ITS STAND BEFORE THE LD.REVENUE AUTHORITIES. THE LD.DR STRONGLY OBJECTED TO THE SUBMISSION OF THE LD.AR AND PLEADED FOR CONFIRMING THE ORDERS OF THE LD.REVENUE AUTHORITIES. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. IT IS APPARENT FROM THE ORDER OF THE LD.CIT(A) THAT EITHER THE ASSESSEE WAS NOT PRESENT BEFORE THE LD.CIT(A) AT THE TIME OF HEARING OR THE LD.CIT(A) DID NOT PROVIDE PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THEREFORE IN THE INTEREST OF JUSTICE, I HEREBY REMIT BACK THE MATTER TO THE FILE OF 4 ITA NO.907/CHNY/2017 LD.CIT(A) FOR DE-NOVA CONSIDERATION AND TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH MERITS AND LAW AFTER PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. I ALSO DIRECT THE ASSESSEE TO CO-OPERATE WITH THE LD.REVENUE AUTHORITIES IN THEIR PROCEEDINGS, FAILING WHICH THE LD.REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS SUITABLE ORDER IN ACCORDANCE WITH MERIT AND LAW BASED ON THE MATERIALS ON RECORD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 16 TH NOVEMBER, 2018 AT CHENNAI. SD/- ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 16 TH NOVEMBER, 2018 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. [ /GF