9911796707
TMI Blog2023 (3) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... essee nor his Authorized Representative appeared before CIT(A). The order of the CIT(A) has to be set aside and the issue remanded to CIT(A) for a decision on merits. The applicability of the proviso to 2(15) of the Act cannot be on the basis of the default of the parties but should be on the basis of facts and circumstances of each case. In the present case, the donations received by the assessee which was taken as receipts were prima facie donations and there is no material to show that the donations were not voluntary. Both the AO and the CIT(A) have called upon the assessee to demonstrate as to how the donations were voluntary and thereby the assessee was called upon to prove a negative fact. The assessee should have an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealth. The assessee filed return of income declaring Nil income after claiming exemption under section 11 of the Act. The AO noticed that the assessee organizes trips and camps by way of Cycle Rally to tourist places such as Kalapetta, Ooty, Palakkad,, Valparai, Mysore, etc., and the participants pay for the cycle rides and for food and lodgings at designated places. According to the AO, the assessee was doing an activity which was akin to trade or business. According to the AO, the receipts from the participants are taken as donation but in reality, they were fees for participation in rallies disguised as donations. The AO therefore concluded that the assessee was hit by the proviso to section 2(15) of the Act and therefore the excess of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of carrying on charitable activity and not any commercial activity. The learned assessing officer failed to give any finding or corroborative evidence that the application and receipt of participation fee is not towards any charitable activity. Wherefore, where the receipt and application are in line with the definition of Section 2(15) of the Act, provisions of Section 11 12 of the Act have to be considered and applied to the facts on hand. [ix] Hence, it is prayed that the provisions of Section 11 12 be applied and the income be computed accordingly. 4. The CIT(A) noticed that the case was fixed for hearing on 8 occasions and the assessee did not respond or participate in the proceedings before CIT(A). The CIT(A) has set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication and due to inadvertence could not provide the requisite papers to the present counsel as instructed by the Managing Trustee of Petitioner / Appellant. The Managing Trustee of the Petitioner / Appellant was under a bonafide belief that the papers have been handed over to the present counsel for preparation of papers and when the Managing Trustee of the Petitioner / Appellant enquired about the filing of appeal to the Hon'ble Tribunal with the staff, it came to the knowledge that the said papers were not sent to the present counsel for preparation of appeal papers to the Tribunal. Soon after learning the fact that the papers were not sent to the present counsel the Managing Trustee provided the requisite papers to the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal by the assessee. 7. In so far as the merits of the appeal is concerned, it is no doubt true that notices were issued to the assessee on several occasions. The assessee had requested for adjournment in the hearing fixed on 25.05.2022 and the case was adjourned to 10.08.2022. On that date also, the assessee did not appear before CIT(A) and the case was adjourned to 16.10.2022 on which date also neither the assessee nor his Authorized Representative appeared before CIT(A). I am of the view that the order of the CIT(A) has to be set aside and the issue remanded to CIT(A) for a decision on merits. The applicability of the proviso to 2(15) of the Act cannot be on the basis of the default of the parties but should be on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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