Income Tax Appellate Tribunal - Mumbai
Development Excellence Foundation, ... vs Ito (E) I(1), Mumbai on 29 December, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "H" MUMBAI
BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND
SHRI N.K. PRADHAN (ACCOUNTANT MEMBER)
ITA No. 1630/MUM/2016
Assessment Year: 2011-12
M/s Development ITO(E)-1(1)
Excellence Foundation Vs. Room No. 508,
2nd floor, Dukanwala Piramal Chambers,
Estate, Above General Lalbaug
Medical, 47 DR Nair Road, Mumbai-400013
Mumbai-400008
PAN No. AAATD2469E
Appellant Respondent
Assessee by : Mr. Nitesh Joshi &
Mr. Mihir Shah, AR
Revenue by : Mr. Ram Tiwari, DR
Date of Hearing : 28/12/2017
Date of pronouncement : 29/12/2017
ORDER
PER N.K. PRADHAN, A.M.
This is an appeal filed by the assessee. The relevant assessment year is 2011-12. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-I, Mumbai and arises out of the assessment completed u/s 143(3) r.w.s. 144 of the Income Tax Act 1961, (the 'Act').
2. The ground raised by the assessee in this appeal is against the order of the Ld. CIT(A) confirming the total income of Rs.2,63,26,440/- made by the Assessing Officer (AO). It is also raised that the assessee having been prevented by sufficient cause from furnishing the additional evidence during the course of assessment proceedings, the M/s Development Excellence Foundation 2 ITA No. 1630/Mum/2016 Ld. CIT(A) ought to have admitted the same under Rule 46A of the Income Tax Rules, 1962.
3. Briefly stated, the facts of the case are that the assessee is a charitable trust and it filed its return of income for the AY 2011-12 on 28.09.2011 along with audit report in Form No. 10B declaring total income at Rs. Nil. It claimed exemption u/s 11 of the Act. The AO issued notice u/s 143(2) and 142(1) dated 21.09.2012 and 11.07.2013 along with questionnaire to the assessee during the course of assessment proceedings. As there was no compliance by the assessee on the above dates, the AO made the assessment u/s 144 determining the income at Rs.2,63,26,440/-
4. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) observed that the assessee failed to explain the reasons for not complying with the notice issued by the AO. The additional evidence filed by the assessee before him were also rejected by the Ld. CIT(A) on the reason that the assessee was not prevented by any sufficient cause in furnishing the said details during the course of assessment proceedings before the AO and hence the conditions provided under Rule 46A were not fulfilled.
On the basis of the above reasons, the Ld. CIT(A) dismissed the appeal filed by the assessee.
5. Before us, the Ld. counsel of the assessee submits that the assessee was not given reasonable opportunity of being heard by the AO. It is also submitted that the Ld. CIT(A) should have admitted the additional evidence filed before him. Reliance is placed by him on the M/s Development Excellence Foundation 3 ITA No. 1630/Mum/2016 judgment of the Hon'ble Bombay High Court in Smt. Prabhavati S. Shah v. CIT (1998) 231 ITR 1 (Bom).
On the other hand, the Ld. DR supports the order passed by the Ld. CIT(A).
6. We have heard the rival submissions and perused the relevant materials on record. As mentioned hereinbefore the AO has issued notice u/s 143(2) and 142(1) dated 21.09.2012 and 11.07.2013 to the assessee. Then he made the assessment u/s 144 stating that there was no compliance by the assessee on the above dates. We refer here to para 2 of the assessment order dated 18.03.2014. Then when the assessee filed appeal before the Ld. CIT(A) requesting for admission of additional evidence under Rule 46A, the same was denied by the Ld. CIT(A).
Let us now refer to the decision in Smt. Prabhavati S. Shah (supra) which reads as under:
"On a plain reading of rule 46A of the Income-tax Rules, 1962, it is clear that the rule is intended to put fetters on the right of the assessee to produce before the Appellant Assistant Commissioner any evidence whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the Income-tax Officer, except in the circumstances set out therein. It does not deal with the powers of the appellant Assistant Commissioner to make further enquiry or to direct the Income Tax Officer to make further enquiry and to report the result of the same to him. This position has been made clear by sub-rule (4) of Rule 46A which specifically provides that the restrictions placed on the production of additional evidence by the appellant would not affect the powers of the Appellant Commissioner to call for the production of any document or the examination of any witness to enable him to dispose of the appeal."
M/s Development Excellence Foundation 4 ITA No. 1630/Mum/2016
7. In the instant case the Ld. CIT(A) has not called for the production of any document or the examination of any witness to enable him to dispose of the appeal.
Respectfully following the above decision, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh assessment after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file all relevant documents/evidence before the AO.
8. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open Court on 29/12/2017.
Sd/- Sd/-
(D.T. GARASIA) (N.K. PRADHAN)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai;
Dated: 29/12/2017.
Rahul Sharma, Sr. P.S.
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A)-
4. CIT
5. DR, ITAT, Mumbai
6. Guard file.
BY ORDER,
//True Copy//
(Dy./Asstt. Registrar)
ITAT, Mumbai