2020 (4) TMI 707 - AT - Income Tax

Exemption u/s 11 - society has been granted registration u/s 12AA - Denial of natural justice - status of the society is treated as AOP - AO has made addition as the assessee society has not claimed the earlier year losses in its return of income - CIT(A) has passed ex-parte order without giving any opportunity of hearing and hence the addition made by the Assessing Office - HELD THAT - From the perusal of the order of the CIT(A) it can be seen that the CIT(A) has not given opportunity of hearing to the assessee before enhancing. As per the provision of the Income Tax Act, 1961, the CIT(A) has to give a proper hearing before enhancing any assessment, but the CIT(A) failed and has overlooked the provisions of the Income Tax Act. Therefore, it will be appropriate to remand back this entire issue to the file of the CIT(A) for proper objection after giving hearing to the assessee. Both the appeals are identical, therefore, both the appeals are partly allowed for statistical purpose.

Issues:
1. Assessment order enhancement by CIT(A) for AY 2007-08 and 2011-12.
2. Failure of CIT(A) to discharge duties as appellate authority.
3. Exceeding power by CIT(A) in withdrawal of exemption u/s 12AA.
4. Observations and decisions not connected to the case.
5. Charging tax at maximum marginal rate without considering eligibility for slab rate.
6. Failure to allow depreciation, adding membership fee twice, and treating lifetime membership fee as revenue receipt.
7. Failure to grant opportunity of hearing before enhancing the assessment.

Analysis:

Issue 1: Assessment Order Enhancement by CIT(A)
The appeals were filed against the Commissioner of Income Tax [Appeals]-I's order for AY 2007-08 and 2011-12. The CIT(A) enhanced the assessment without proper adjudication on the grounds of appeal challenging the assessment order. The appellant raised concerns regarding the CIT(A) passing orders without affording an opportunity to be heard, making decisions not connected to the case, and taxing gross receipts and donations inaccurately.

Issue 2: Failure of CIT(A) to Discharge Duties
The CIT(A) failed to discharge duties as an appellate authority by not providing a proper hearing before enhancing the assessment. The appellant contended that the CIT(A) overlooked the provisions of the Income Tax Act, which mandate a fair hearing before making any enhancements. Consequently, the matter was remanded back to the CIT(A) for proper consideration after giving the appellant a chance to be heard.

Issue 3: Exceeding Power in Withdrawal of Exemption
In the case of AY 2011-12, the CIT(A) exceeded his power by ordering the withdrawal of exemption under section 12AA without the necessary order of cancellation or revocation by the Commissioner of Income Tax (Exemption). This action was deemed illegal and not in conformity with the provisions of the Income Tax Act.

Issue 4: Charging Tax at Maximum Marginal Rate
The Assessing Officer erred in charging tax at the maximum marginal rate without considering the eligibility of the registered society as an Association of Persons for slab rate taxation on its taxable income. This mistake led to incorrect tax calculations, highlighting the need for a proper understanding of the applicable tax provisions.

Issue 5: Failure to Allow Depreciation and Incorrect Treatment of Membership Fees
The Assessing Officer failed to allow depreciation, added membership fees twice, and treated lifetime membership fees as revenue receipts instead of capital receipts. These errors in the assessment order indicated a lack of understanding of the statutory claims and proper categorization of income and expenses.

Issue 6: Failure to Grant Opportunity of Hearing
The CIT(A) passed an ex-parte order without giving the appellant an opportunity to be heard, leading to grievances regarding the enhancement made by the Assessing Officer. The failure to provide a fair hearing before making decisions on the assessment raised concerns about procedural fairness and adherence to legal requirements.

In conclusion, the judgment highlighted various issues related to the assessment order enhancements, failure to discharge duties by the CIT(A), exceeding powers in withdrawal of exemption, incorrect tax calculations, errors in treatment of income and expenses, and the necessity of providing a fair opportunity of hearing in appellate proceedings. The matter was remanded back for proper consideration, emphasizing the importance of procedural fairness and adherence to legal provisions in tax assessments.

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