What did the Tribunal hold?

The Tribunal found that the CIT(A) had not followed proper procedure by not waiting for the remand report before deciding the appeal based on additional evidence. Therefore, the matter was restored to the Assessing Officer.

The Revenue appealed the CIT(A)'s deletion of additions made on account of unexplained advance to contractors and donations. The CIT(A) had considered additional evidence without obtaining a remand report from the Assessing Officer.

What were the issues?

Whether the CIT(A) was justified in deleting additions by considering additional evidence without a remand report from the AO, violating Rule 46A of IT Rules.

ITO vs Kunjabinodini Charitable Trust… | ITAT Cuttack 2017

Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK

Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE

For Respondent: Shri D.K.Pradhan, DR

Hearing: 22/05Pronounced: 26/05

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No.415/CTK/2013 Assessment Year :2009-2010

ITO, Ward 2(2), Vs. Kunjabinodini Charitable Bhubaneswar. Trust, A/173, Sahid Nagar, Bhubaneswar. PAN/GIR No. AABTK 4144 Q (Appellant) .. ( Respondent)

Assessee by : None Revenue by : Shri D.K.Pradhan, DR

Date of Hearing : 22/05/ 2017 Date of Pronouncement : 26/05/ 2017

O R D E R Per N.S.Saini, AM This is an appeal filed by the revenue against the order of CIT(A)-II,

Bhubaneswar, dated 30.3.2013, for the assessment year 2009-10.

The revenue has raised the following grounds of appeal:

”1. On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs.39,60,558/- made by the AO on account of unexplained advance to contractors.

On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in deleting the addition of Rs. 10,43,953/- made by the AO on account of donation.

2 ITA No. 415/CT K/ 2013 Asse ssment Year :20 09- 201 0

On the facts and in the circumstances of the case, the Ld. CIT(A) is not justified in accepting the contentions of the assessee and not accepting the findings of the AO in violation of Rule 46A of the IT Rules.”

Notice of hearing was sent to the respondent-assessee by Speed Post

on 9.5.2017 fixing the date of hearing on 22.5.2017. None was present for

the assessee when the case was called for hearing and neither any

adjournment was filed. The said notice has not been returned back by the

postal authorities unserved. Earlier, the case was fixed for hearing on

24.4.2014 when the same was adjourned to 21.5.2015 at the request of ld

A.R. of the assessee. On the said date, again the hearing was adjourned

to 12.1.2016, when the appeal was adjourned sine dine as none appeared

on behalf of the assessee. The case was fixed for hearing on 1.8.2016 and

the same was adjourned to 31.8.2016 at the request of ld A.R. of the

assessee as a last opportunity. Keeping in view the above facts and

circumstances of the case, the Bench proceeded to hear the appeal and

decide the same considering the submission of ld D.R.

Ld D.R. arguing the Ground No.3 of the appeal submitted that the

CIT(A) has deleted the addition of Rs.39,60,558/- made by the Assessing

Officer on account of unexplained advance to contractors and addition of

Rs.10,43,95a3/- on account of donation by considering additional

evidences which were submitted to the Assessing Officer for his report and

the appeal was decided without waiting for the remand report of the

Assessing Officer. Thus, there was violation of Rule 46A of ITAT Rules,

3 ITA No. 415/CT K/ 2013 Asse ssment Year :20 09- 201 0

1962. He, therefore, prayed that the matter may be restored back to the

file of the Assessing Officer for readjudicating the same afresh after

considering the additional evidences filed before the CIT(A) by the

assessee.

After considering the submissions of ld D.R. we are of the considered

opinion that the CIT(A) had called for a remand report on 29.11.2012 and

fixed a period of 30 days for the same. The report was not received and a

reminder was sent on 22.3.2013 granting time of 7 days to the Assessing

Officer for submitting his remand report. The CIT(A) has not taken any

step between 29.11.2012 to 21.3.2013 for calling of the remand report

from the Assessing Officer by sending him a reminder. We find that on

22.3.2013, suddenly, he allowed 7 days’ time to the Assessing Officer and

without receiving the remand report from the Assessing Officer, adjudicated

the issue involved in the appeal in favour of the assessee by considering

the additional evidences. In the above facts and circumstances of the case,

we are of the considered view that in the interest of rendering substantial

justice, the matter should be restored back to the file of the Assessing

Officer for considering the additional evidences filed by the assessee which

were not filed before the Assessing Officer but were filed at the time of

appellate proceedings and considering the same the CIT(A) deleted the

addition. We, therefore, set aside the order of the CIT(A) and remand back

the same to the file of the Assessing Officer for adjudicating the issues

4 ITA No. 415/CT K/ 2013 Asse ssment Year :20 09- 201 0

afresh after considering the additional evidences and affording a reasonable

opportunity of hearing to the assessee.

In the result, the appeal filed by the revenue is allowed for statistical

purposes.

Order pronounced in the open court on 26/05/2017 in the presence of parties. Sd/- Sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 26/05/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : ITO, Ward 2(2), Bhubaneswar. 2. The Respondent. Kunjabinodini Charitable Trust, A/173, Sahid Nagar, Bhubaneswar. 3. The CIT(A)-II, Bhubaneswar 4. Pr.CIT, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. BY ORDER, //True Copy//

SR.PRIVATE SECRETARY ITAT, Cuttack

5 ITA No. 415/CT K/ 2013 Asse ssment Year :20 09- 201 0

Date Initial 1. Draft dictated on 22/05/17 Sr.PS 2. Draft placed before author 22/05/17 (dictation pad Sr.PS has been enclosed along with original file) 3. Draft proposed & placed AM before the second member 4. Draft discussed/approved by AM Second Member. 5. Approved Draft comes to the Sr.PS/ Sr.PS/PS PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the H.C. 9. Date on which file goes to the SPS 10. Date of dispatch of Order.

ITO, WARD-2(2), BHUBANESWAR, BHUBANESWAR vs. KUNJABINODINI CHARITABLE TRUST, BHUBANESWAR

What did the Tribunal hold?

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