Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH “SMC-2”, NEW DELHI
Before: SHRI H.S. SIDHU
Date of Hearing : 05-11-2015 Date of Order : 17-11-2015
ORDER This is an appeal filed by the Assessee is directed against the Order of the Ld. CIT(A), Ghaziabad dated 15.5.2015 relating to asstt. year 2010-11.
The following grounds have been raised in the Appeal.
“1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in taking the figure of Rs.5,55,284/- while calculating the income assessed instead of NIL income as declared by the appellant society.
2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making disallowance of Rs.2,25,571/- on account of depreciation claimed by the appellant.
3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in not allowing the exemption uls 1O(23C)(iiiae) and has further erred in observing that there is a profit motive of the society and i~ned order has been passed by recording incorrect facts and findings and without providing adequate opportunity of hearing.
4. That in any view of the matter and in any case, action of Ld. CIT (A) in confirming the action of Ld. AO in not allowing the exemption uls 1O(23C)(iiiae) and in deleting the disallowance of depreciation and in framing the impugned order which is beyond jurisdiction, illegal, in violation of principles of natural justice, by recording incorrect facts and findings, barred by limitation, contrary to the law and facts and deserves to be quashed.
5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of the AO in not allowing the credit of prepaid taxes.
6. That the assessee craves the leave to add, alter or amend the grounds of appeal at any stage and all the grounds are without prejudice to each other.”
The brief facts of the case are that the return of income has been filed by the Society on 2.8.2011 declaring NIL income. The case was selected under compulsory scrutiny. The notice u/s. 143(2) dated 22.9.2011 and notice u/s. 142(1) alongwith questionnaire dated 28.6.2012 alongwith the statutory notices 2 was served upon the assessee requiring for various details and information as considered necessary for scrutiny of the case. In compliance thereto, assessee’s counsel attended the proceedings and required details were filed. Thereafter, the AO completed the assessment at an income of Rs. 7,80,855/- vide his order dated 28.2.2013 passed u/s. 143(3) of the I.T. Act, 1961.
Against the assessment order, the assessee preferred an Appeal before the ld. CIT(A), who vide impugned order dated 15.5.2015 partly allowed the appeal of the assessee.
Against the aforesaid order of the Ld. CIT(A), Assessee is in appeal before the Tribunal.
Ld. Counsel of the assessee reiterated the contention raised in the grounds of appeal and also filed a Paper Book containing pages 1 to 20 having copy of assessee’s reply dated 17.12.2012 filed to the AO; copy of assessee’s reply dated 8.1.2013 filed to the AO alongwith annexures; copy of assessee’s reply dated 22.1.2013 filed to the AO; copy of assessee’s submissions dated 9.1.2015 filed before the Ld. CITA(A) and copy of assessee’s submissions dated 30.4.2015 filed before the Ld. CIT(A) and stated that the same were considered by the lower authorities.
7. On the other hand, Ld. DR relied upon the order passed by the Ld. CIT(A) on the issues in dispute.
I have heard both the parties and perused the records especially the orders of the revenue authorities.
8.1 With regard to ground no. 2 relating to disallowance of Rs. 2,25,571/- on account of depreciation claimed by the assessee is concerned, I find that the Ld. DR relied upon the order of the Ld. CIT(A) wherein the Ld. CIT(A) has relied upon various judgments which is in favour of the Revenue. Similarly, the Ld. Counsel for the assessee has also relied upon various judgment including the judgment of the Hon’ble Delhi High Court which are decided in favour of the assessee. No decision, direct on the point, of Hon’ble Jurisdictional High court has been brought to my notice. Keeping in view of the facts and circumstances of the present case and the judgment cited by both the parties which are in favour of the assessee as well as in favour of the Revenue also, I refer the Hon’ble Apex Court decision in the case of M/s Vegetable Products Ltd. 88 ITR 192, wherein it has been held that in the taxing provision if two constructions are possible, one favouring assessee should be adopted.
8.2 Respectfully following the above precedent, I decide this issue in favour of the assessee and against the revenue and accordingly delete the addition in dispute and decide the ground no. 2 in favour of the assessee.
With regard to ground no. 3 relating to not allowing the exemption u/s. 10(23C)(iiiae) is concerned, as per the AO, the assessee has not filed any documentary evidence before the lower authorities. But before me the assessee has filed a Paper Book for substantiating his claim containing pages 1 to 20 having copy of assessee’s reply dated 17.12.2012 filed to the AO; copy of assessee’s reply dated 8.1.2013 filed to the AO alongwith annexures; copy of assessee’s reply dated 22.1.2013 filed to the AO; copy of assessee’s submissions dated 9.1.2015 filed before the Ld. CITA(A) and copy of assessee’s submissions dated 30.4.2015 filed before the Ld. CIT(A) which needs to be considered afresh, under the law. Therefore, in the interest of justice, this issue is remitted back to the file of the AO for fresh consideration, after giving adequate opportunity of being heard to the assessee.
In the result, the Assessee’s Appeal stands allowed for statistical purposes.
Order pronounced in the Open Court on 17/11/2015.