ITO (E) I(1), MUMBAI V. BALWAS CHARITABLE TRUST, MUMBAI

ITA 953/MUM/2015

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9744 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Assessee Lawyers: K G BOHRA
• Keywords: Charitable institution; Opportunity of being heard; Additional evidence
• Section: 142(1); 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NOS.953/MUM/2015 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER(E)-I(1), ROOM NO.508, 5 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, MUMBAI-400012 / VS. BALWAS CHARITABLE TRUST, 265-E, BELLASIS ROAD, MUMBAI CENTRAL, MUMBAI-400008 ( ! / REVENUE) ( '#$ /ASSESSEE) P.A. NO.AABTB0244Q ! / REVENUE BY SHRI NEIL PHILIP-DR '#$ / ASSESSEE BY SHRI K. G. BOHRA % !& ' $( / DATE OF HEARING : 10/09/2018 ' $( / DATE OF PRONOUNCEMENT 10/09/2018 ITA NO.953/MUM/2015 BALWAS CHARITABLE TRUST 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 28/11/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE GROUND RAISED IS WITH RESPECT TO ADMITT ING THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE-46A OF THE RULES AND WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSING OFFICER. 2. DURING HEARING, SHRI NEIL PHILIP, LD. DR, CONTENDED THAT THE FIRST APPELLATE AUTHORITY, ADMIT TED ADDITIONAL EVIDENCE, IGNORING THE FACTUAL FINDING R ECORDED IN THE ASSESSMENT ORDER AND THUS IT IS VIOLATION OF RU LE-46A OF THE RULES. AT THIS STAGE, THE BENCH ASKED THE LD. C OUNSEL FOR THE ASSESSEE, SHRI K. G. BOHRA, WHETHER THE ADD ITIONAL EVIDENCE WAS FILED BEFORE THE FIRST APPELLATE AUTHO RITY, IT WAS FAIRLY ADMITTED THAT YES, ADDITIONAL EVIDENCE WAS FILED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A CHARITABLE TRUST, CLAIME D TO BE ENGAGED IN CHARITABLE ACTIVITIES. THE ASSESSEE DECL ARED INCOME OF RS.67,321/- AND CLAIMED EXEMPTION UNDER ITA NO.953/MUM/2015 BALWAS CHARITABLE TRUST 3 SECTION 11 OF THE ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THEREFORE, NOTICES UNDER SECTION 143( 2) AND 142(1) OF THE ACT, ALONG WITH QUESTIONNAIRE WERE IS SUED AND SERVED UPON THE ASSESSEE. AS PER THE LD. ASSESSING OFFICER, DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FURNISH THE REQUIRED DETAILS AS HAS BEEN MENTIONED IN THE ASSESSMENT ORDER. IT HAS BEEN OBSERVED IN THE ASSES SMENT ORDER THAT THE ASSESSEE WAS INDULGED IN ILLEGAL ACT IVITIES OF GIVING LOANS TO OTHER TRUST, WHICH IS NOT AUTHORIZE D BY THE OBJECT CLAUSE. AS PER THE LD. DR, THE CLAIM WAS EXA MINED BY THE LD. ASSESSING OFFICER, WHICH WAS FOUND TO BE INADMISSIBLE. IT IS ALSO A FACT THAT THE ADDITIONAL EVIDENCE, FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (AP PEAL), WAS NOT FILED BEFORE THE LD. ASSESSING OFFICER, THU S, THE LD. ASSESSING OFFICER WAS PREVENTED TO EXAMINE THE FACT UAL MATRIX. HOWEVER, WITHOUT GOING INTO MUCH DELIBERATI ON, SINCE, IT IS A VIOLATION OF RULES 46A OF THE RULES, WE DEEM IT APPROPRIATE TO REMAND THIS APPEAL TO THE FILE OF TH E LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE AFRESH, IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIR ECTED TO FURNISH NECESSARY EVIDENCE IN SUPPORT OF ITS CLAIM BEFORE ITA NO.953/MUM/2015 BALWAS CHARITABLE TRUST 4 THE LD. ASSESSING OFFICER. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD AND TO SUBSTANTIATE ITS CLAIM WITH THE HELP OF NECESSARY EVIDENCE, THUS, THE APPE AL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/09/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 10/09/2018 F{X~{T? P.S/. . . , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4$ , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4$ / CIT(A)- , MUMBAI 5. 6!7 $ , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8' 9& / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI