Socieity For Promotion of Health, Education, Empowement of Rural Economy, Bhubaneswar V. ACIT, Bhubaneswar

ITSSA 69/CTK/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7527 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 02-04-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 15-04-2009
• Court: TRIBUNAL
• Department Lawyers: P
• Section: 143(3); 2; 11

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM IT (SS) A NO S . 69,70,71,72,73,74 AND 75/CTK/2009 (AYS 200 - 01, 2001 - 02, 2002 - 03 ,2003 - 04, 2004 - 05, 2005 - 06 AND 2006 - 07) SOCIETY FOR P ROMOTION OF HEALTH EDUCATION, EMPOWERMENT OF RURAL ECONOMY, B - 20, BJB NAGAR,BHUBANESWAR PAN : AAAAS 4658 P VERSUS ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 1(2), BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI P.S.PANDA/KAMAL AGARWALLA,ARS FOR THE RESPONDENT SMT. PARAMITA TRIPATHY, CIT - DR DATE OF HEARING : 02.04.2012 DATE OF PRONOUNCEMENT : 25.0 4 .2012 ORDER SHRI K.K.GUPTA, AM : THESE APPEALS BY THE ASSESSEE FILED FOR THE RESPECTIVE AYS ARE ON THE LEARNED CIT(A), BY WAY OF A COMM ON ORDER, DISMISSING THE ASSESSEES APPEALS IN LIMINE BY FOLLOWING THE DECISIONS OF ITAT, DELHI BENCH IN THE CASE OF CIT V. MULTIPLAN INDIA (P.) LTD., (38 ITD 320) AND MADHYA PRADESH HIGH COURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V. COMMISSIONER OF WEALTH TAX (223 ITR 480). 2. AT THE OUTSET, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE , WHICH IS NOT IN ACCORDANCE WITH LAW. THE LEARNED DR, ON THE OTHER HAND, SUP PORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A). 3. ACCORDING TO SECTION 250(6) THE ORDER OF CIT(A) SHOULD BE IN WRITING STATING POINTS OF DETERMINATION. SECTION 250(6) IS AS FOLLOWS : - SEC. 250(6): THE ORDER OF THE [COMMISSIONER (APPEALS)] DISPOSING OF TH E APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. THUS SECTION 250(6) ORDAINS THAT THE APPELLATE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY MUST BE IN WRITING AND STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. THE PROVISIONS OF IT(SS)A NOS. 69,70,71,72,73,74 AND 75/CTK/2009 2 SECTION 250(6) ARE IN THE NATURE OF INSTRUCTION TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE ORDER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT BE CRYPTIC. THE ORDER SHALL BE SELF - EXPLANATORY. THIS IS MORE SO, BECAUSE SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE APPELLATE TRIBUNAL. THE OBJECT IS TOO OBVIOUS. IT ENABLES A PARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINST HIM. ABSENCE OF FORMULATION OF THE POINTS FOR DECISION OR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PARTY IN QUANDARY. A DECISION BY ITS VERY NATURE MUST BE FIRM AND SHOULD NOT BE VAGUE AND UNCLEAR. REFERENCE IN THIS REGARD CAN BE MADE TO T HE FOLLOWING DECISIONS : - 1. ABDUL SATHAR HAJI MOOSA SAIT DHARMASTAPANAM VS. CIT (1988) 169 ITR 84 (KER) 2 . CIT VS. KARAMCHAND PREMCHAND (P) LTD. 74 ITR 254 (GUJ) 3 . CIT VS. BUILDWELL ASSAM (P) LTD. (1982) 133 ITR 736 (GAUH) A JUDGMENT UNSUPPORTED BY REASONS I S NO JUDGMENT IN THE EYE OF LAW. IT IS WELL SETTLED THAT REASONS ARE THE LINKS BETWEEN THE MATERIAL ON RECORD AND THE CONCLUSION ARRIVED AT BY THE COURT [CIT VS. SURENDRA SINGH PAHWA (1995) 79 TAXMAN 298] AND LASTLY THE APPELLATE AUTHORITY IS A QUASI JUDIC IAL AUTHORITY. HE SHOULD EXERCISE THE DISCRETION VESTED IN HIM IN ACCORDANCE WITH LAW. THE ORDER PASSED BY HIM SHOULD SHOW THAT HE HAS APPLIED HIS MIND AND TAKEN INTO CONSIDERATION THE BASIC REQUIREMENTS GERMANE TO THE ISSUE [V.N. PURUSHOTHAMAN VS. AG.ITO (1984) 149 ITR 120 (KER.)]. FURTHER, IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS. JT. CIT 74 ITD 339, ITAT, AHMENDABAD BENCH WHILE DISCUSSING U/S 250(6) HAS HELD THAT SECTION 254 CONFERS PLENARY JURISDICTION ON THE TRIBUNAL IN THE MATTER OF PASSING ORDER S UNDER SECTION 254 AND AS AGAINST THAT SECTION 250(6) DOES NOT CONTAIN SUCH POWER HENCE THE REFERENCE MADE BY CIT(A) TO THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD. (SUPRA) WAS ENTIRELY MISPLACED. 4. GOING THROUGH THE IMPUGNED ORDER OF THE LEARNED CIT(A ) AND CONSIDERING THE SAME IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENTS, WE IT(SS)A NOS. 69,70,71,72,73,74 AND 75/CTK/2009 3 FOUND THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE WITHOUT ANY DISCUSSION ABOUT THE MERITS OF THE ISSUES RAISED BEFORE HIM. THEREFORE, THE IMPUG NED ORDER OF THE LEARNED CIT(A) CANNOT BE SUSTAINED AND HENCE, IT IS SET ASIDE. 5. THE LEARNED AR OF THE ASSESSEE NEXT SUBMITTED BEFORE US THAT THE ASSESSEE WAS NOT TO BE SUBJECTED TO ASSESSMENT U/S.153C R.W.S. 143(3) AS NO NOTICE U/S.143 ( 2)HAD BEEN SERVED AND THE ASSESSEE WAS CONTINUING TO AVAIL THE BENEFIT OF SECTION 11 HAVING BEEN GRANTED REGISTRATION U/S.12AA. THE EXCESS OF INCOME OVER EXPENDITURE DECLARED IN THE RETURN SHOULD NOT BE TAXED AS UNDISCLOSED INCOME INSOFAR AS THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE S CASE CLEARLY INDICATE THAT THE ASSESSMENTS HAVE NOT BEEN MADE OTHERWISE. THE LEARNED CIT - DR, HOWEVER, OPPOSED THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE INSOFAR AS THE LEARNED CIT(A) WAS CONSTRAINT TO DISMISS THE ASSESSEE APPEAL IN LIMINE BY RELYING ON THE DECISIONS OF ITAT, DELHI BENCH IN THE CASE OF CIT V. MULTIPLAN INDIA (P.) LTD., (38 ITD 320) AND MADHYA PRADESH HIGH COURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V. COMMISSIONER OF WEALTH TAX (223 ITR 480). SHE SUBMITTED THAT THE ASSESSING OFFICER HAS GIVEN CATEGORICAL FINDINGS OF CORRELATING THE SEIZED MATERIAL TO APPROPRIATELY INITIATE THE PROCEEDINGS U/S.153C R.W.S. 153 OF THE ACT FOR PASSING THE ORDER FOR THE RESPECTIVE AYS AS PER THE CLAIM OF THE ASSESSEE I TSELF. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT CONTROVERT THE SUBMISSIONS OF THE LEARNED CIT - DR. FURTHER WE FIND THAT THE ASSESSING OFFICER HAS BROUGHT TO TAX INCOMES WHICH HAVE BEEN DECLARED BY THE ASSESSEE IN HIS INCOME AND EXPENDITURE ACCOUNT AN D HAS ALSO DECLARED LOANS WHICH DO NOT PERTAIN FOR THE EXPENDITURES CLAIMED ON THE BASIS OF RECEIPTS , THEREFORE, THERE WAS NOTHING MUCH TO EXPLAIN BY THE LEARNED COUNSEL AS OF NOW. THE AO HAS RIGHTLY IT(SS)A NOS. 69,70,71,72,73,74 AND 75/CTK/2009 4 AND FAIRLY COMPUTED THE INCOME WHICH NEEDS NO INTERFERENCE. IN THAT VIEW OF THE MATTER WE DO NOT FIND ANY INFIRMITY IN THE ASSESSMENT ORDERS PASSED BY THE A SSESSING OFFICER FOR THE IMPUGNED YEARS. 6. SINCE THE LEARNED CIT(A), IN THE IMPUGNED ORDERS, HAS DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINE AND WE HAVE SET ASIDE THE SAME FOR THE REASONS DISCUSSED IN PARAGRAPHS 2 TO 4 OF THIS ORDER, WE WOULD HAVE RES TORED THE MATTER TO THE FILE OF THE LEARNED CIT(A) BUT, BY DOING SO WE ARE OF THE CONSIDERED VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED, AS RIGHTLY CONTENDED BY THE LEARNED CIT - DR, WHEN ON FACTS WE FIND THAT THERE IS NO INFIRMITY IN THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER FOR THE REASONS DISCUSSED IN PARAGRAPH 5 OF THIS ORDER. IN SUCH VIEW OF THE MATTER, WE DISMISS THE APPEALS OF THE ASSESSEE. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE DISMISSED. S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICI AL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 25.0 4 .2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SOCIETY FOR PROMOTION OF HEALTH EDUCATION, EMPOWERMENT OF RURAL E CONOMY, B - 20, BJB NAGAR,BHUBANESWAR 2. THE RESPONDENT: ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 1(2), BHUBANESWAR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.