SHRI DARIYALAL SARVAJANIK TRUST ,MUMBAI vs. ITO (EXEMPTION), MUMBAI
Income Tax Appellate Tribunal, Mumbai “H(SMC
Before: Smt. Beena Pillai (JM) & Shri Omkareshwar Chidara (AM) Shri Dariyalal Sarvajanik Trust 33, Dariyasthan Street Mandvi S.O. Mumbai Mumbai-400 003. Vs. ITO Ward 2(3) MTNL building Cumbala Hill Pedder Road Mumbai-400026. PAN : AABTS3725P
Per Omkareshwar Chidara (AM) :-
For the assessment year 2010-11, the appellant Trust filed an appeal with the following grounds of appeal :-
1) The Ld. AO as well as CIT(A) is erred in adding a sum of Rs. 8,80,000/- as trust income without going through the fact that, there was no undisclosed income of the trust.
2) The appellant prays to delete the addition made on this account.
From the assessment order, it is noticed that there is no compliance to the notices issued under section 148 and 142(1) of the I.T. Act issued by the Ld. AO, on various dates and hence the assessment order was completed ex- parte under section 144 of the Act making an addition of Rs. 10 lakhs invested in Bonds alongwith interest income of Rs. 2,54,965/-. It is observed from the assessment order that five notices, including a notice under section 148 of the Act was issued to the appellant and as there was no response to any of these statutory notices hence, the Ld. AO completed the assessment on the above lines.
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3. Aggrieved by the additions made by the Ld. AO, an appeal was filed before Ld. CIT(A) and from the order of Ld. CIT(A), it is observed that there also, no compliance is seen by the appellant. The Ld. CIT(A) has also given five notices on various dates as mentioned in paragraph 7.1 of his order and there is no response and hence the appeal of appellant was dismissed for non-prosecution of the appeal and adjudicated that the appellant is not interested in pursuing the appeal. Apart from this, the Ld. CIT(A) has adjudicated the issue on merits too in paragraph 7.3 of his order. It was mentioned by the Ld. CIT(A) that despite giving several opportunities, the appellant trust has not discharged its onus to prove that the receipt is not income nor taxable. The Ld. CIT(A) has also stated in this para as follows :
“7.3 This appeal has been filed by the appellant claiming that the action of the Assessing Officer is not supported by facts and laws and that it is unjust. In such a situation, it is for the appellant to furnish submissions with relevant evidence(s), case laws, if any, to support the claim. The burden of proof is always on the person who makes the claim. In this case, it is the appellant who has made the claim by filing the appeal. Thus, in cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where, however, the assessee claims exemption, the burden is on the assessee to prove it to be exempt. In his petition assessee has raised 1 grounds of appeal upon which Amount of maturity of investment, reinvested, taken as investment. Core of issued of ground which was already discussed in this order as in lack of any follow up made by applicant to discharge his duty to response against burden of proof his appeal cannot be accepted. Same is the position in case of all allowances, deductions, claims or loss, etc.
Since an appeal is nothing but the claim of the appellant that he has been unduly unjustifiably taxed, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so.
Aggrieved by the orders of the Ld. AO and Ld. CIT(A), an appeal was filed by the appellant before the ITAT with the above grounds of appeal stated in page No. 1 of this order. During the proceedings before the Bench, the Ld. AR of the appellant filed a paper book containing the details of returns of income for A.Ys. 2010-11 and 2011-12 alongwith a copy of certificate of investment in Bonds of Government of India (8% savings, taxable Bonds) to prove the genuineness of investment in this Government Bond. These details of copy of certificates of Government Bonds were filed for the first time before the ITAT under Rule 46A of the 3 I.T. Rules as additional evidence to be considered without any explanation as to why the same was not filed before lower authorities. It was pleaded that the non-submission of details was not intentional and an opportunity may be given to the trust to file all the details before the Ld. AO.
Before the ITAT, there is a delay in filing of appeal by 103 days and the appellant has filed an application and an affidavit explaining the reason for delay due to internal disputes among trustees, election in between for various posts of trustees and confusion regarding role of each trustees. As the delay is only technical and non-intentional, the Ld. AR of the appellant has pleaded that the delay may be condoned.
The Ld. DR has opposed the delay stating that is no proof that there are disputes among the trustees and it is only a statement. The Ld. DR has also opposed the plea of Ld. AR of the appellant that the issue may be remitted back to the Ld. AO, because no reasons were adduced for non- submission of details before lower authorities.
Heard both sides. Since the appellant being a trust and no violations were pointed out by Ld. AO/Ld. CIT(A), taking a lenient view, it is decided by the Bench to remit the matter back to the file of Ld. AO for the following reasons :- a) There is no response to the notices issued by the Ld. AO, including notice under section 148 of the Act and four notices under section 142(1) of the Act.
b) There is no response to the five notices issued by the Ld. CIT(A).
c) The Ld. CIT(A) has not passed the order under section 250 of the Act with dismissal simpliciter, but mentioned in detail the reasons for dismissal of appeal, as mentioned in this order.
d) There is a delay of filing of an appeal before the ITAT also and reason mentioned for delay is without any proof and still a lenient view is taken to condone the delay.
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8. The appeal of appellant is allowed for statistical purposes.
Order pronounced in the open Court on 11/04/2025. (BEENA PILLAI)
ACCOUNTANT MEMBER
Mumbai; Dated: 11/04/2025
Copy of the Order forwarded to :
The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file.
BY ORDER,
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