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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: SRI SANJAY GARG & DR. MANISH BORAD
order
: October 16th, 2023 ORDER
Per Manish Borad, Accountant Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2019-20 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income Tax (Appeals)- NFAC, Delhi [in short ‘ld. CIT(A)’] dated 28.12.2022 arising out of the assessment I.T.A. No.: 145/KOL/2023 Assessment Year: 2019-20 Bangashree. order framed by the Assessing Officer (in short ld. ‘AO’) u/s 143(1) of the Act dated 04.06.2020.
The assessee is in appeal before this Tribunal raising the following grounds: “
1. That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in sustaining the addition of Rs. 1,36,79,692/-. as made by the Ld. A.O., u/s. 143(1)(a) without allowing the deduction u/s 1O(23C) as claimed by the appellant.
2. That on the facts and in the circumstances of the case, the Ld. CIT(A) erred in passing the order u/s.250 without applying his mind properly in considering the facts of the case that the appellant was eligible and entitled to the deduction u/s. 10(23C) of the Income Tax Act, 1961. Thus the denial of allowing the benefit of Sec. 10(23C) by the Ld. CIT(A) was unjust and contrary to the facts as well as law.
3. That the appellant craves leave to urge such other ground or grounds before or at the time of hearing of appeal.”
3. The facts in brief are that the assessee is a public charitable Trust and it runs an educational institution. Return of income was filed on 02.01.2020 declaring income of Rs. 41,808/-. The same was processed u/s 143(1)(a) of the Act by the CPC which denied the benefit of exemption claimed u/s 10(23C) of the Act and assessed income at Rs. 1,37,21,500/- which was actually the gross receipt for the year.
4. Aggrieved, the assessee preferred appeal before ld. CIT(A) but failed to succeed as the assessee did not appear on the dates of hearing nor could file any written submission.
5. Aggrieved, the assessee is now in appeal before this Tribunal. Ld. Counsel for the assessee referring to the written submission stated that firstly the said adjustment done by the CPC is beyond I.T.A. No.: 145/KOL/2023 Assessment Year: 2019-20 Bangashree. the jurisdiction provided u/s 143(1)(a) of the Act as the said adjustment do not fall under prima facie adjustment. Secondly, it was contended that during the year the assessee has incurred the expenditure of Rs. 1,36,79,692/- and even in case the assessee was not allowed the benefit of exemption u/s 10(23C) of the Act, the lower authorities ought to have allowed the expenditure against the gross receipt.
6. On the other hand, ld. D/R vehemently argued supporting the orders of both the lower authorities and stated that the assessee did not appeal before ld. CIT(A), therefore the issue may be remitted to ld. CIT(A) for necessary adjudication.
We have heard rival contentions and perused the records placed before us. We notice that the assessee is a charitable Trust. As per the written submission filed before us it is claimed that gross receipt during the year is Rs. 1,37,21,500/- and the expenditure incurred is Rs. 1,36,79,692/-. It has also been submitted that the assessee carries out two separate courses conducted by two separate institutes namely Unique B.Ed. College run under the curriculum of West Bengal University of Teachers Training and Unique D.EI.D. run under the curriculum of West Bengal Board of Primary Education and gross receipt of each of the institution is less than 1 Crore.
We observe that all these facts could not be placed by the assessee before ld. CIT(A). The fact that the assessee has incurred expenditure of Rs. 1,36,79,692/- and the same should have been allowed against the gross receipt of Rs. 1,37,21,500/- leaving aside the benefit of exemption u/s 10(23C) of the Act should have been Page 3 of 5 I.T.A. No.: 145/KOL/2023 Assessment Year: 2019-20 Bangashree. taken into consideration by ld. CIT(A) by dealing with this issue. However, considering the fact that the assessee failed to appear on the dates after being provided various opportunities and did not file any written submission and even before us audited financial statements of each of the two units and the consolidated financial statements have not been filed. Therefore, in the larger interest of justice and being fair to both the parties, we deem it appropriate to restore the matter back to the file of ld. CIT(A) for afresh adjudication. Needless to mention that proper opportunity of being heard should be given to the assessee. The assessee is also directed to remain vigilant and file necessary documents, if considered, in support of its grounds of appeal
and should not take adjournment, unless otherwise required for reasonable cause. In case after providing sufficient opportunity to the assessee, there is no compliance by the assessee, then ld. CIT(A) can pass a speaking order in accordance with law.