THE DELHI HIGHER EDUCATION AID TRUST,NEW DELHI vs. ITO, WARD- 2(3), NEW DELHI

आदेश/O R D E R

PER PRADIP KUMAR KEDIA, AM:

3. When the matter was called for hearing, the Ld. Counsel for the assessee as well as the Ld. SR. DR for the revenue submitted in unison that certain additional evidence were placed before the CIT(A) by the assessee which were not admitted by the CIT(A). The issue has not been examined by the CIT(A) on merits. The proof of investment under section 11(5) of accumulative profits under section 11 (2) was not admitted as additional evidence under Rule 46A of the I.T. Rules 1962.

4. Having regard to the submissions made in tandem as well as to the facts of the case, the dispute raised in the present appeal requires to be remitted back to the AO. The assessment in the instant case was made u/s. 144 of the Act. The assessee has failed to furnish the proof of evidence of amount accumulated under section 11 (2) as per the objects prescribed u/s. 11 (5) of the Act before the AO. The AO has, therefore, denied the benefit of accumulated available for exemption u/s. 11 of the Act. The CIT(A) has also refused to admit the additional evidence to demonstrate the compliance of section 11(5) for the purpose of availment of benefits under section 11 (2) of the Act without properly weighing the facts and circumstances of the case.

5. Having regard to the observations made by the Hon’ble Supreme Court in the case of Tinbox Company Vs. CIT 249 ITR 216 (2001) and to prevent miscarrige of justice, we deem it expedient to restore the issue back to the file of the AO for denovo adjudication of the issue in accordance with law after taking into account the evidence and the defence propagated on behalf of the assessee. Needless to say, the AO shall frame the assessment after giving reasonable opportunity to the assessee for setting out its case. The order of the CIT(A) is accordingly set aside and the issue is restored to the file of the AO.