COMMISSIONER OF INCOME TAX Vs. SAS EDUCATIONAL SOCIETY

JUDGEMENT

(1.) THE Revenue has preferred this appeal under s. 260A of the IT Act, 1961 (in short, "the Act") against the order of the substantial questions of law : "(i) Whether, on the facts and circumstances of the case and in law, the Hon'ble Tribunal was correct in giving fresh opportunity to the assessee in view of the repeated and recorded failures on the part of the assessee ? (ii) Whether, on the facts and circumstances of the case and in law, the Hon'ble Tribunal was right in ignoring the repeated failures on the part of the assessee and remanding the case back to the file of the AO for fresh adjudication -

(2.) THE assessee is running an educational institution but filed return of business income. The assessee is not registered under s. 12AA of the Act nor sought any exemption under s. 10(23C) of the Act. The AO made assessment making addition to the declared income, holding that the assessee failed to produce books of account and supporting documents. Penalty proceedings were also initiated. The appeal of the assessee was dismissed. Finding was recorded that the assessee was non -co -operative and failed to avail of opportunity of producing the material. Reliance was placed on the judgment of the Delhi High Court in CWT vs. Gurdial Singh (1980) 123 ITR 483 (Del), judgment of the Hon'ble Supreme Court in CIT vs. Segu Buchiah Setty (1970) 77 ITR 539 (SC), the judgment of this Court in Miri Mal Mahajan vs. CIT (1974) 95 ITR 186 (P&H) and the judgment of the Madras High Court in CIT vs. Rayala Corporation (P) Ltd. (1995) 215 ITR 883 (Mad). On further appeal to the Tribunal, the contention of the assessee was that it was in a position to substantiate its claim on the merits if opportunity was given. The Tribunal observed that without going into the controversy, the assessee ought to be given one opportunity.

(3.) WE have heard learned counsel for the parties.