SILICON CITY EDUCATION TRUST,BANGALORE vs. INCOME TAX OFFICER WARD- 3, BANGALORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

2. The CIT(A) erred in concluding that the appellant had accepted the addition before Addl. CIT whereas the appellant had accepted only the building fund received of Rs.24,48,000/- which was omitted to taken into gross receipts and not the other additions made in the order.

and in the written submission filed on 17.04.2017 even though referring the same in the appellate order.

5. The CIT(A) erred in not considering the various decisions quoted in the grounds of appeal as well as in written submission including the jurisdictional High Court decision simply rejecting for having accepted the addition before the assessing officer which is against the board circular in No,14/(XL-35), dt. 11.04.1955.

6. The CIT(A) could have been another opportunity since there was a change in Authorized Representative who's address was on file the notice of hearing has been sent to the earlier representative who has filed a letter of adjournment dt.26.07.2017 which was received by the office of CIT(A) on 28.07.2017, the CIT(A) have pass the order on 31.07.2017.

7. For these and other ground that may be urged the appellant humbly prays that the appeal may kindly be set aside to CIT(A) for giving one more opportunity in the interest of Justice and equity.”

3. At the very outset, it was submitted by ld. AR of assessee that the order passed by ld. CIT (A) is ex-parte. He drawn our attention to Para no. 3 of the order of CIT (A) and pointed out that in this Para, it is noted by CIT (A) that written submissions were filed by assessee on 17.04.2017 and although he has stated in the same para that the appeal is proposed to be disposed of based on such written submissions available on record but in fact, the same were not considered. He pointed out that the relevant submissions filed before CIT (A) on 17.04.2017are available on pages 49 to 57 of paper book and the same were not considered in the order of CIT (A). Therefore, the matter may be restored back to the file of CIT (A) for fresh decision after providing adequate opportunity of being heard to the assessee. The ld. DR of revenue submitted that the written submissions are duly considered by CIT (A) as stated by him in para no. 3 of the order of CIT (A) and therefore, the order of CIT (A) should be confirmed.

4. I have considered the rival submissions. I find that in para no. 3 of his order, it is noted by CIT (A) that the assessee has filed written submissions on Page 3 of 4 17.04.2017 and the appeal will be decided by considering the same. The appeal was decided by CIT (A) as per para no. 4 but in this Para, there is no reference to written submissions dated 17.04.2017 which are available on pages 49 to 57 of paper book. In the written submissions filed before CIT (A) on dated 17.04.2017, this contention was also raised that an amount of Rs. 24.48 Lakhs was received towards corpus fund (building fund) but the AO has considered the same as fees collection and added the same to the income. It is also submitted in the written submissions that the funds were collected by way of building funds and have been utilized for the purpose of construction of the building. There is no finding given by CIT (A) in the impugned order regarding these contentions raised before him and hence, I feel it proper to restore this matter back to the file of CIT (A) for fresh decision by way of a speaking and reasoned order. Accordingly I set aside the order of CIT (A) and restore the entire matter back to the file of CIT (A) for fresh decision after providing adequate opportunity of being heard to both sides.In view of this decision; I do not make any comment on the merit of the case.

Order pronounced in the open court on the date mentioned on the caption page.