Capital Educational Society, Ghaziabad V. ITO, Exemption Ward, Ghaziabad

ITA 987/DEL/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 5453 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 04-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard
• Section: 154; 11; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘B’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI YOGESH KUMAR US, JUDICIAL MEMBER ITA No.987/Del./2020 (ASSESSMENT YEAR : 2013-14) Capital Educational Society, vs. ITO, Exemption Ward, 77, Chander Nagar, Ghaziabad. Ghaziabad – 201 011 (Uttar Pradesh). (PAN : AAAAC6240M) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri T.M. Shivakumar, Advocate REVENUE BY : Md. Gayasuddin Ansari DR Date of Hearing : 20.07.2022 Date of Order : 20.07.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (Appeals), Ghaziabad dated 20.11.2019 for the assessment year 2013-14. 2. The assessee has taken the following grounds of appeal :- “1. That the Ld. CIT(A) has grossly erred in dismissing an appeal in limine stating that an appeal filed was not in time, whereas the same was filed on time. 2. That the Ld. CIT(A) has erred in passing the appellate order without adjudicating the appeal on merits. ITA No.987/Del./2020 2 3. That the Ld. CIT(A) has erred in not considering the fact that the Ld. AO has erred in passing the order u/s 154 of the Act by not allowing the repayment of Term Loans of Rs.40,29,996/- as the Application of Income u/s 11 of the Act, as the borrowed funds have been taken and used for the objects of the trust. 4. That the Ld. CIT(A) has erred in not considering the fact that the Ld. AO has erred in passing the order u/s 154 of the Act by not allowing the depreciation of Rs.38,01,441/- as the Application of Income, as without claiming the depreciation the application of income was already been exceeded more than 85 percent of income as such the same could not have been the part of application of income as prepared in the certificate issued by the accountant but the same being statutory deduction cannot be denied. Even the amendment in section 11(6) of the Act came w.e.f. 01.04.2015 and the same is prospective and not retrospective.” 3. In this case, ld. CIT (A) has dismissed the appeal in limine by not condoning the delay of one month. The assessee in its computation has mentioned that appeal was filed in time with reference to data specified. Ld. CIT (A) did not say on what basis dates mentioned by assessee are wrong and on what basis the dates mentioned by ld. CIT (A) are sacrosanct. There is no mention of entries in any register. 4. In any case, a delay of one month is only nominal and ld. CIT (A) is being hyper technical in dismissing the appeal solely on that ground. It is settled law that when substantial interest of justice is pitted against hyper technicality, it is the substantial interest/justice which prevails. ITA No.987/Del./2020 3 5. Accordingly, we condone the delay and remit the case to the file of ld. CIT (A). The ld. CIT (A) shall decide the issue on merits after giving the assessee proper opportunity of being heard. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on this 20 th day of July, 2022 after the conclusion of the hearing. Sd/- sd/- (YOGESH KUMAR US) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 20 th day of July, 2022 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A), Ghaziabad. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.