TMI Blog2015 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) had not considered the said list of the donors while passing the impugned order. It is well settled that nobody should be condemned unheard as per the maxim “Audi Alteram Pertam”. In our opinion, in the present case a proper opportunity of being heard was not given to the assessee by the AO to explain its case. We, therefore, deem it proper to set aside the impugned order passed by the ld. CIT(A) and the issue is remanded back to the file of the AO for fresh adjudication in accordance with the law after providing due and reasonable opportunity of being heard to the assessee. - Decided in favour of assessee for statical purposes. - ITA No. 957/Del/2009, ITA No. 2371/Del/2012 - - - Dated:- 19-12-2014 - Sh. N. K. Saini, AM And Sh. C. M. Garg, JM,JJ. For the Petitioner : Sh. Ashwani Janeja, Adv. For the Respondent : Sh. Gaurav Dudeja, Sr. DR ORDER Per N. K. Saini, AM: These two appeals by the assessee are directed against the separate orders dated 28.11.2008 and 09.02.2012 of the ld. CIT(A) Ghaziabad. 2. Since the appeals are co-related belonging to the same assessee and were heard together, so these are being disposed off by this consolidated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up a school. The assessee society has paid ₹ 18,70,891/- to Greater Noida industrial Development Authority, Greater Noida against the said plot but till date Greater Noida Industrial Development Authority, Greater Noida has not given the physical possession of the plot to the assessee society. This is the one and only reason that the assessee society could not start its functioning. Since the society is an educational society and its income is eligible for exemption u/s 10(23C) of the Income Tax Act, 1961. It is requested to please grant some more time for further explanations for claiming exemptions. If any more information is required the assessee society is ready to furnish. 5. The assessee also specified the source of deposits in the bank accounts and the purpose of withdrawal which has been discussed by the AO at page no. 5 of the assessment order dated 06.11.2006 for the cost of repetition the same is not discussed herein. The AO also asked the assessee to explain as to how the impugned amount was exempted, when the assessee society had not been granted 12A certificate. In response to that the assessee submitted as under: Confirmatory letters from donors by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which the alleged donation has been received have been prepared from the two banks i.e. State Bank of Bikaner Jaipur, Faiz Road, Karol Bagh, Delhi and State Bank of Bikaner Jaipur, New Rohtak Road, New Delhi on the same day and in continuance numbers. The Memorandum of donation are in the same language and have been written by the same person. 7. The AO mentioned in the assessment order dated 06.11.2006 that the assessee did not furnish any reply on the specified date. He, therefore, to verify the genuineness of the donations, issued the summons u/s 131 of the Act to the respective donors. According to the AO, the summons in 13 out of 18 cases were returned back by Postal Authorities with the remarks no such persons and the remaining 5 donors did not attend on the date fixed. The AO deputed two Income Tax Inspectors to verify the correct and recent addresses of the donors. The Inspectors reported that those persons were not residing at the addresses mentioned. The AO was of the view that the persons had never stayed or were never residents at the addresses at which they had filed the Income Tax Returns. He also mentioned that the opportunity was given to the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Budh Nagar. The elections were being held in the area which is the only way to the office of Additional Commissioner of Income Tax, Noida. Because of election/polling, the borders of Distt. Bulandshahar as well as Distt. G. B. Nagar was sealed by the District Authorities from 8.00 a.m. to 5.00 p.m. Meaning thereby the assessee was restricted by a reasonable cause, to attend the proceedings on 03.11.2006. On 4th 5th day of Nov. 2006 Income Tax office was closed on account of Saturday Sunday. On 06.11.2006 i.e. immediate next working days, counsel of the assessee namely CA P. K. Jain, Mr. Deepak Goyal, Advocate have attended the proceedings along with Dr. Sudhir Agarwal, president of the society. But learned Additional Commissioner of Income Tax has refused to take up the case and after detaining all the 03 persons for more than 03 hours, served the assessment order on the same day. It is also evident from the date of order that learned Additional Commissioner of Income Tax has not afforded a proper reasonable opportunity of being heard to the assessee. It is also evident from the facts narrated in the order of Leaned Additional Commissioner of Income Tax on page no. 11 that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity of being heard served the assessment order and therefore proper opportunity of being heard was not provided to the assessee by the AO. It was contended that the ld. CIT(A) without considering the facts of the case in right prospective and without going through the details furnished by the assessee confirmed the addition in arbitrary manner. He requested that the case may be remanded back to the AO to be decided after giving proper opportunity of being heard to the assessee. 11. In his rival submissions the ld. DR vehemently argued and stated that the AO had given sufficient opportunity of being heard to the assessee and also issued the summons to the donors on the addresses mentioned in the returns of income of the donors but the same were returned back by the Postal Authorities by making the remarks that those persons were not residing at the given addresses. It was further stated that the assessee never applied to the ld. CIT(A) for admission of new evidences therefore, there was no violation of Rule 46A of the Income Tax Rules, 1962. It was contended that the donors were not having any immovable property and their income was not sufficient to give the alleged donations t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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