9911796707
TMI Blog2012 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ue has raised the following grounds of appeal : "1. That the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.42,03,882/- following the appeal order of Ld. CIT(A)-II, Agra passed on 20.10.2010 against the original assessment order passed under section 143(3) on 29.12.2006 without adjudicating the merits of the additions made by the A.O. 2. That the Ld. C'sIT(A) order with respect to deletion of addition of Rs.42,03,882/- which comprised of addition made of Rs.16,98,347/- as undisclosed investment by the assessee in the construction of property, disallowance of Rs.2,00,000/- on account of unverifiable expenses and disallowances claimed on exemption under section 10(23C)(iiiad) amounting to Rs.23,05,535/-, is not acceptable because the revenue has already preferred appeal before the Hon'ble ITAT vide its appeal filed against C'sIT(A) earlier order dated 20.10.2010. 3. That the Ld. CIT(A) has erred in law and on facts in impliedly accepting the assessee's claim of exemption under section 10(23C)(iiiad) by following the decision of his predecessor CIT(A) and by not adjudicating the assessee's claim of exemption on merits. 4. That the appellant craves leave to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of appeal. One legal ground has been raised before the CIT(A) that in the absence of issuance of notice under section 142(1), the A.O. has erred in law in completing the assessment under section 144 of the Act without affording an opportunity of being heard to the assessee. The CIT(A) decided this issue against the assessee holding that the A.O. has provided opportunity of hearing before making the assessment under section 144 of the Act. The ground on merit raised is that the addition of Rs.42,03,882/- as made in the original assessment order dated 29.12.2006 was under appeal before the CIT(A). The CIT(A) allowed this ground of appeal as the addition of Rs.42,03,882/- has been deleted by the CIT(A) vide order dated 29.10.2010 where the assessee challenged the original order of the A.O. before the CIT(A). The CIT(A) held that subsequent order passed under section 147 read with section 144 of the Act, the same addition cannot be made. The relevant finding of CIT(A) is reproduced as below :- (paragraph no.5.2, page nos.5 & 6) "5.2 After considering the rival submissions filed in written submission/remand report as well as oral arguments taken before me in the hearing held on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) vide his order dated 29.10.2010. 10 The addition of Rs.17,18,669/- has been made by the A.O. invoking section 147 on the basis of direction given by the CIT(A) while passing his order for A.Y. 2004-05. It is important to note that the finding of CIT(A) for A.Y. 2004-05 has been challenged by the assessee before the I.T.A.T. and the I.T.A.T. in ITA No.464/Agr/2009 for A.Y. 2004-05 vide order dated 11.05.2012 quashed the direction of CIT(A) for making addition in A.Y. 2005-06. The relevant finding of I.T.A.T. is reproduced as below :- "5. We have considered the rival submissions and the material on record and we do not justify the finding of the ld. CIT(A) in issuing direction to make addition in assessment year 2005-06. Hon'ble Supreme Court in the case of CIT vs. Manick Sons, 74 ITR 1 (SC) have held - "That the Tribunal had no jurisdiction in the appeal for the assessment year 1953-54 to reopen the assessment for the year 1952=53. There was no sanction in law to enforce the undertaking given by the respondent to make a voluntary return for the year 1952-53 when urging its appeal for the year 1953- 54; and even if the respondent carried out that undertaking the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appeal was adjourned to 03.05.2012. However, on the date of hearing, no such cross objection has been filed by the Revenue Department challenging the finding of ld. CIT(A) holding that the income of the assessee is exempt u/s 10(23C)(iiiad) of the IT Act. The finding of the ld. CIT(A), thus, remained final that the income of the assessee is exempt being solely existed for educational purpose. Thus, the decision of Hon'ble Delhi High Court in the case of Raunaq Education Foundation (supra) squarely applies to the case of the assessee. Considering the above discussion, we are of the view that the ld. CIT(A) was not justified in issuing the direction to the AO to make addition in subsequent assessment year 2005-06. Further when income of the assessee is exempt u/s. 10(23C)(iiiad) of the IT Act, no purpose would serve to make further addition against the assessee in any respect because the addition, if any, made to the income of the assessee, would further exempt the income of the assessee. Considering the totality of facts and circumstances, noted above, we are of the view that the appeal of the assessee on the above ground shall have to be allowed. We accordingly, set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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