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East Point Education Society FC 26, Vasundhara Enclave New Delhi Aayakar bhawan, Vs. ADIT (E) Dt.Centre Trust Circle II Laxmi Nagar New Delhi 92
June, 04th 2014
               IN THE INCOME TAX APPELLATE TRIBUNAL
                   DELHI BENCHES : "C" NEW DELHI

                    BEFORE SHRI R.P.TOLANI, JM AND
                      SHRI J.SUDHAKAR REDDY, AM

                               ITA No: 3367/Del/2011
                                   AY : - 2007-08

East Point Education Society        vs.   ADIT (E)
FC 26, Vasundhara Enclave                 Trust Circle II
New Delhi                                 Aayakar bhawan, Dt.Centre
PAN: AAATE 2296 E                         Laxmi Nagar
                                          New Delhi 92

(Appellant)                                (Respondent)

                      Appellant by : Shri Piyush Kaushik, Adv.
                   Respondent by: Shri Sameer Sharma, Sr.D.R.

                           ORDER


PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER

      This is an appeal filed by the assessee directed against the order of the

Learned Commissioner of Income Tax (Appeals)-XXI, New Delhi dated

28.4.2011 pertaining to the Assessment Year 2007-08 on the following grounds.



"1. On the facts and circumstances of the case the CIT (A) has erred in
upholding the assessment made by AO which was bad in law and void ab intio.
2.    On the facts and in circumstances of the case and in law, the CIT (A) has
erred in upholding Assessing officer's act in reopening appellants assessment for
the year under consideration despite the fact that AO did not have any reason to
believe that appellants income for the year under consideration had escaped
assessment.
3.    On the facts and circumstances of the case the CIT (A) has erred in
upholding the AO's act of reopening the assessment u/s 147 when AO's reason
                                                                       Page 2 of 6

to believe that appellant income has escaped assessment were extraneous to the
facts on record and had no live link with the believe.
4.     On the facts and circumstances of the case the CIT(A) erred in upholding
additions made in assessment despite the fact that no addition of a single rupee
was made on the basis of reasons recorded for reopening assessment.
5.     On the facts and circumstances of the case the CIT(A) erred in upholding
entire disallowance of Rs 10,06,8961- out of appellants genuine expenditure on
adhoc basis in reassessment proceedings.
6.     On the facts and circumstances of the case the CIT(A) erred in giving a
finding that the appellant did not attend proceeding before DGIT(E) u/s 10(23C)
of the I.T. Act when that finding was not relevant for deicing the appeal before
him neither his finding was based on any material.
7.     On the facts and circumstances of the case the CIT(A) erred in upholding
the reopening on the plea which was never raised by the appellant.
8.     On the facts and circumstances of the case the CIT(A) erred in not
admitting additional ground raised by the appellant.
9.     On the facts and circumstances of the case the CIT(A) erred in rejecting
additional evidence submitted by the appellant.
10.   On the facts and circumstances of the case the CIT(A) has erred in
upholding AO's act of denying benefit of section 11 & 12 of the I.T. Act to the
appellant.
11.    On the facts and circumstances of the case the CIT(A) has erred in
upholding the AO's act of holding that appellant has violated provision of section
13(1)(c) of the Act when no actual payment of interest was made by the
appellant to its member.
12.    On the facts and circumstances of the case the CIT (A) has erred in
upholding AO's act of disallowing depreciation claim of Rs 1,69,087/- as
appearing in society account on assets used for the purposes of running the
school of the society.
                                                                      Page 3 of 6

13.     On the facts and circumstances of the case the CIT (A) has erred in
upholding AO's act of disallowing entire expenditure of society amounting to Rs
8,37,809/- incurred in attaining its objectives.
14 On the facts and circumstances of the CIT (A) has erred in upholding the
AO''s act of charging tax on appellants income at maximum marginal rate.
15.     On the facts and circumstances of the case the CIT (A) has erred in
punishing appellant for the misconduct of one of the member of the appellant
society.
16.     On the facts and circumstances of the case the CIT (A) has erred in
upholding AO's act of levying interest u/s 2348 on the appellant.
17.     On the facts and circumstances of the case CIT (A) has erred in upholding
the order of the AO without considering evidence on record and merits of the
case.
18.      On the facts and circumstances of the case the order of learned CIT(A)
was erroneous as he failed to consider any submission or case law cited by the
appellant.
19.     On the facts and circumstances of the case the entire appellant order was
against the principles of natural justice.
20. Appellant craves for grant of permission to add, alter or withdraw any
ground of appeal at or any time before the hearing."





2.      We have heard Mr.Piyush Kaushik, the Ld.Counsel for the assessee and

Mr.Sameer Sharma, the Ld.Sr.D.R. on behalf of the Revenue.



3.      We first adjudicate the issue of reopening. The reasons for reopening are

as follows.

"East Point Education Society : Assessment Year 2007-08:
                                                                          Page 4 of 6

A return has been filed declaring `nil' income. Scrutiny of the return reveals that
the auditor has prepared the audit report on the basis of the text check of
vouchers.     The auditor in his report has stated that one partner has taken
construction loan and has also constructed a building. Loan as well as building
has not been considered in the balance sheet, which clearly shows that the
application of funds is not verifiable. The assessee has failed to produce the
books of accounts and vouchers before DGIT(E) during the proceedings u/s
10(23C). In this case, the auditor has not certified in his audit report u/s 10BB
that he had verified all the vouchers. I have reasons to believe that in the facts
and circumstances of the case, the assessee has not declared true income, so
far as the application of trust fund is not verifiable. Issue notice u/s 148.
Sd/- (VS Kapoor) DDIT(E), TC II, N.Delhi dt. 26.3.2009"


3.1.     The Tribunal in the assessee's own case for the Assessment Year 2006-

07, while considering the issue of reopening, has held that the reopening is bad

in law. At para 30 to 33 pages 14 and 15, it is held as follows.



"30.     We have heard the rival contention and perused the material available on
record. It is undisputed that the original assessment was completed u/s 143(1)
of the Act. The Revenue pleaded that in this case the Assessing Officer
possessed wide powers of reopening powers and the auditors disclosure which is
as under amounted to information:
               "One member of the society, has taken loan for construction of
building and building was partly constructed. The loan was taken without
permission of society. The executive committee of the society has decided not to
account for any books this loan , account and construction of building from this
loan."
                                                                        Page 5 of 6

31. According to the Revenue, this information constituted sufficient     reasons
for the Assessing Officer to issue notice u/s 148. Assessee contends that the
Assessing Officer's power to reopen the assessment, even in the case of section
143(1) is subject to conditions which have been enunciated' by the various High
Courts including jurisdictional High Court in the case of Ranbaxy Laboratories
Ltd. vs. CIT (supra), wherein it has been held if the reasons for initiation of
proceedings cease to survive, Assessing Officer reassessment is bad in law. The
point for consideration before us is whether the Assessing Officer had sufficient
reasons to reopen proceedings for assessment year 2006-07. The reasons
recorded for both the year~ i.e. assessment years 2006-07 and 07-08 are
mechanically identical. The proceedings u/s 10(23C) were undisputedly taken up
only in assessment year 2007-08 and the factum of a loan disputed conversion
of donation of one of the Governing Body members, Mohinder Singh was
effected in the books of account in assessment year 2005-06 and not in 2006-
07. In our view, the mere note about the audit being on the basis of test check
voucher and auditor's audit does become the basis of reopening of assessment
of 2006-07 as the same is the standard auditing practice.
32.   In case of section 143(1) assessment, the theory of change of opinion
may not be applicable but the nexus of reasons and application of mind are still
imperative for upholding the action to reopen the assessment. There is mention
of 2nd reason in the assessment order about any member having taken any
building loan.   In the order only exemption u/s 11 is denied.       Respectfully
following Hon'ble Delhi High Court judgement in the case of Ranbaxy
Laboratories Ltd., we are of the view that as far as the AY 2006-07 is concerned,
the reopening of assessment is invalid.
33.   In the impugned Assessment Year i.e. 2006-07 both the reasons do not
show any application of mind or making record of reasons on any material
having any objective bearing."
                                                                         Page 6 of 6




3.2.   The Ld.Counsel for the assessee has also brought to our notice the order

of the `B' Bench of the Tribunal in assessee's own case dr. 13.9.2013 in ITA

968/Del/2013 for the Assessment Year 2009-10 wherein              the order of the

Tribunal for Assessment Year 2006-07 was followed. Consistent with the view

taken therein that the reopening in question is bad in law, we allow this ground

of the assessee. Since it has been held that the reopening is bad in law, we do

not go into the other aspects.


4.     In the result the appeal of the assessee is allowed.

Order pronounced in the Open Court on 02nd June,2014.



                 Sd/-                                 Sd/-
                                                    -
        (R.P. TOLANI)                          (J.SUDHAKAR REDDY)
       JUDICIAL MEMBER                         ACCOUNTANT MEMBER


Dated: the 02nd June, 2014

*manga


Copy of the Order forwarded to:
   1. Appellant; 2.Respondent; 3.CIT; 4.CIT(A); 5.DR; 6.Guard File

                                                              By Order




                                                          Asst. Registrar

 
 
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