M/s. Kalgidhar National Public School, New Delhi V. ITO, New Delhi

CO 48/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4907 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 04-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KS KOHLI
• Assessee Lawyers: AMRENDRA KUMAR
• Keywords: Additional evidence
• Section: 12A; 12AA; 68; 148

Judgement Text

I.T.A. NO.4824-48 /DEL/09 1/6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.4824 /DEL/2009 ASSESSMENT YEAR : 2005-06 ITO, M/S KALGIDHAR NATIONAL PUBLIC WARD-26 (4), SCHOOL, INDERPURI, NEW DELHI. V. NEW DELHI. AND C.O NO.48/DEL/.2010 (IN I.T.A. NO.4824/DEL/21009) ASSESSMENT YEAR : 2005-06 M/S KALGIDHAR NATIONAL ITO, PUBLIC SCHOOL, INDERPURI, WARD-24 (60), NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AAGTS-6678-C APPELLANT BY : SHRI AMRENDRA KUMAR, SR. DR. RESPONDENT BY : SHRI K.S. KOHLI, C.A. ORDER PER BENCH: THE APPEAL IS FILED BY THE REVENUE AND THE CROSS OB JECTION IS FILED BY THE ASSESSEE. BOTH ARE DIRECTED AGAINST THE ORDER OF LD CIT(A) XXIV, NEW DELHI DATED 27.102.2009 FOR ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - . I.T.A. NO.4824-48/DEL/09 2/6 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN: I) TREATING ASSESSMENT ORDER AS NULL AND VOID. II) ADMITTING THE ADDITIONAL EVIDENCE WITHOUT AFFO RDING AN OPPORTUNITY TO THE ASSESSING OFFICER AS PER PROVISIONS OF RULE 46A (3) OF THE ACT. III) ALLOWING EXEMPTION U/S 10(23BBA) IN VIEW OF PR OVISO TO THIS CLAUSE WHICH READS AS UNDER:- PROVIDED THAT NOTHING IN THIS CLAUSE SHALL BE CONST RUED OOTO EXEMPT FROM TAX THE INCOME OF ANY TRUST, ENDOWMENT OR SOCIETY R EFERRED TO THEREIN 3. THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION ARE AS UNDER:- 1. LD CIT(A) HAS NOT ADMITTED ANY ADDITIONAL EVIDEN CE. 2. THAT THE LD CIT(A) HAS RIGHTLY ALLOWED THE APPEA L IN FAVOUR OF THE APPELLANT. 3. APPELLANT IS NOT AN ASSESSABLE ENTITY. THAT KALG IDHAR NATIONAL PUBLIC SCHOOL HAS NO INDEPENDENT STATUS AND IS PART & PARC EL OF SRI GURU SINGH SABHA, INDERPURI, NEW DELHI. 4. NO SEPARATE ASSESSMENT CAN BE MADE OF ONE BRANC H AND THEREFORE DEMAND IS BOUND TO BE DELETED AS DEMAND IS ILLEGAL UNJUSTIFIED AND AGAINST THE NATURAL LAW OF JUSTICE. 5. THE ACCOUNT OF KALGIDHAR NURSERY SCHOOL ARE MERG FED WITH PARENT BODY SRI GURI SINGH SABHA AS RETURN OF INCOME OF SRI G URU SINGH SABHA IS BEING FILED. 4. BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT NOTICE U/S 148 WAS ISSUED IN THIS CASE AS THERE IS AN AIR INFORMATION. IT IS FURTHER NOTED BY THE ASSESSING O FFICER THAT IN REPLY TO THIS NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 19.12.2007. IT IS FURTHER NOTED BY THE . I.T.A. NO.4824-48/DEL/09 3/6 ASSESSING OFFICER THAT IN THE COURSE OF SCRUTINY PR OCEEDINGS, IT WAS STATED BY THE LD AR OF THE ASSESSEE THAT KALGIDHAR NATIONAL PUBLI C SCHOOL IS NOT A SEPARATE ENTITY BUT A PART OF SOCIETY SRI GURU SINGH SABHA, INDERPURI, NEW DELHI AND THE RETURN IS FILED IN THE NAME OF SRI GURU SINGH SABHA , INDERPURI. IT WAS ALSO STATED BEFORE THE ASSESSING OFFICER THAT THIS SCHOOL IS MA NAGED BY THIS SOCIETY WHOSE INCOME IS EXEMPT U/S 10(23)(C) OF THE INCOME TAX AC T, 1961. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE WAS ASKE D TO PRODUCE REGISTRATION OF THE SOCIETY U/S 12A OF THE ACT BUT IN REPLY, IT WAS SUBMITTED BY THE ASSESSEE THAT PRESENTLY THE SOCIETY IS NOT REGISTERED U/S 12A OF THE ACT. SINCE THERE WAS NO REGISTRATION OF SOCIETY U/S 12A OF THE ACT, IT IS F URTHER NOTED BY THE ASSESSING OFFICER THAT AS PER THE RETURN FILED BY THE ASSESSE E, THE SCHOOL HAS DECLARED INCOME OF RS. NIL. IT IS ALSO NOTED BY THE ASSESSI NG OFFICER THAT THE ASSESSEE WAS ASKED TO JUSTIFY AND TO GIVE THE SOURCE OF DEPO SIT OF RS.49,25,334/- IN SAVINGS BANK A/C AS PER CIB INFORMATION RECEIVED BY HIS OFFICE BASED ON WHICH NOTICE U/S 148 ISSUED. IT IS FURTHER NOTED BY THE A SSESSING OFFICER THAT APART FROM SUBMITTING THAT THEY ARE EXEMPT FROM INCOME TAX, NO DETAILS HAS BEEN FURNISHED ABOUT THIS DEPOSIT IN THE BANK ACCOUNT AND HENCE BY INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT, THE ASSESSING OFFICER ADDED THIS AMOUNT IN THE INCOME OF THE ASSESSEE. BEING AGGRIEVED, THE ASSESSEE CARRIE D THE MATTER IN APPEAL BEFORE LD CIT(A) . BEFORE LD CIT(A), IT WAS STATED BY THE ASSESSEE THAT W.E.F. 13.6.2007, REGISTRATION OF SRI GURU SINGH SABHA WAS GRANTED BY THE DIT (EXEMPTION) U/S 12AA OF THE INCOME TAX ACT, 1961. THE ADDITION MAD E BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE LD CIT(A) ON THE BASIS THAT THE ASSESSEE IS NOT A SEPARATE ASSESSABLE ENTITY AND THE ASSESSING OFFICE R IS AT LIBERTY TO PASS ON THIS INFORMATION TO THE ASSESSING OFFICER OF SRI GURU SI NGH SABHA FOR DOING THE NEEDFUL. BY MAKING THIS OBSERVATION, THE ASSESSMEN T ORDER WAS TREATED AS NULL AND VOID BY LD CIT(A). NOW, THE REVENUE IS IN APPE AL BEFORE US AGAINST THIS ORDER OF LD CIT(A). THE CROSS OBJECTION OF THE ASSESSEE IS ONLY IN SUPPORT OF THE ORDER OF LD CIT(A). 5. LD DR OF THE REVENUE SUPPORTED THE ASSESSMENT OR DER. IT IS ALSO SUBMITTED BY HIM THAT REGISTRATION CERTIFICATE GRANTED TO SRI GURU SINGH SABHA U/S 12A OF THE . I.T.A. NO.4824-48/DEL/09 4/6 INCOME TAX ACT, 1961 WAS NOT AVAILABLE BEFORE THE A SSESSING OFFICER AND HENCE THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. AS AGAINST THIS, LD AR OF THE ASSESSEE SU PPORTED THE ORDER OF LD CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THIS STATEMENT WA S MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ALSO THAT THE SCHOOL I N QUESTION IS NOT A SEPARATE ASSESSABLE ENTITY BUT A PART OF SOCIETY SRI GURU SI NGH SABHA, INDERPURI. THIS CLAIM OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSES SING OFFICER FOR THE REASON THAT TILL THAT POINT OF TIME, THIS SOCIETY WAS NOT REGISTERED U/S 12A OF THE INCOME TAX ACT, 1961. BUT NOW, A CLEAR FINDING IS GIVEN BY THE LD CIT(A) THAT REGISTRATION WAS GRANTED TO THE SOCIETY U/S 12AA W.E.F. 13.6.200 7 BUT STILL DURING THE PRESENT YEAR, I.E. ASSESSMENT YEAR 2005-06, THE SAID SOCIE TY REMAINED UN-REGISTERED BECAUSE AS PER LD CIT(A) ALSO, REGISTRATION WAS ALL OWED ONLY W.E.F. 13.6.2007 WHEREAS THE ASSESSMENT YEAR BEFORE US IS ASSESSMENT YEAR 2005-06 AND HENCE, THIS REGISTRATION CERTIFICATE MADE AVAILABLE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IS NOT A DECISIVE FACTOR IN CONNECTION WITH THE PRESENT APPEAL WHICH IS RELATED TO ASSESSMENT YEAR 2005-06. IN THE PRESENT CASE, THE DECISION OF LD CIT(A) IS BASED ON THIS ASPECT THAT THE ASSESSEE IS NOT A SEPARATE ASSESSABLE ENTITY. THIS ASPECT WAS VERY MUCH BROUGHT TO THE NO TICE OF THE ASSESSING OFFICER ALSO BY THE ASSESSEE AS HAS BEEN NOTED BY THE ASSES SING OFFICER IN THE ASSESSMENT ORDER AND THE CLAIM OF THE ASSESSEE IS T HAT THE SCHOOL IN QUESTION IS PART OF SRI GURU SINGH SABHA, INDERPURI, A SOCIETY AND THIS CLAIM HAS NOT BEEN FOUND FALSE BY THE ASSESSING OFFICER. LD CIT(A) HAS HELD THAT THE ASSESSING OFFICER IS AT LIBERTY TO PASS ON THIS INFORMATION T O THE ASSESSING OFFICER OF SRI GURU SINGH SABHA FOR DOING THE NEEDFUL BUT THE PRESENT A SSESSMENT ORDER IS NOT MAINTAINABLE BECAUSE THE ASSESSEE SCHOOL IS NOT AN ASSESSABLE ENTITY. SINCE LD DR OF THE REVENUE COULD NOT POINT OUT ANY DEFECT IN THIS FINDING OF LD CIT(A) THAT THE PRESENT ASSESSEE IS NOT AN ASSESSABLE ENTITY, W E FIND NO REASON TO INTERFERE IN THE ORDER OF LD CIT(A). HENCE, WE CONFIRM THE SA ME. . I.T.A. NO.4824-48/DEL/09 5/6 7. REGARDING GROUND NO.2 OF THE REVENUE IN CONNECTI ON WITH ADMISSION OF ADDITIONAL EVIDENCE, WE FIND THAT THIS GROUND IS NO T MAINTAINABLE BECAUSE THE ADDITIONAL EVIDENCE BEING REGISTRATION CERTIFICATE W.E.F. 13.6.2007 IS NOT RELEVANT BECAUSE THE ASSESSMENT YEAR IN APPEAL BEFORE US IS ASSESSMENT YEAR 2005-06 WHEREAS THE REGISTRATION WAS GRANTED U/S 12AA OF TH E ACT W.E.F. 13.6.2007 AND HENCE IN THE PRESENT YEAR, EVEN AFTER THIS REGISTRA TION ALSO, THE SAID SOCIETY REMAINS UN-REGISTERED. 8. REGARDING GROUND NO.3 IN CONNECTION WITH ALLOWIN G OF EXEMPTION U/S 10(23)(BBA), WE FIND THAT NO SUCH EXEMPTION WAS ALL OWED BY THE LD CIT(A) IN HIS ORDER AND IT WAS THE ONLY DECISION OF THE LD CIT(A) THAT THE ASSESSMENT ORDER IN QUESTION IS NULL AND VOID FOR THE REASON THAT THIS ASSESSEE IS NOT A SEPARATE ASSESSABLE ENTITY. HENCE, THIS GROUND OF THE REVENU E IS ALSO LIABLE TO BE REJECTED SINCE IT DOES NOT ARISE OUT OF THE ORDER OF THE LD CIT(A). 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 10. REGARDING CROSS OBJECTION OF THE ASSESSEE, WE F IND THAT THE CROSS OBJECTION IS ONLY IN SUPPORT OF THE ORDER OF LD CIT (A) AND HENCE IT IS INFRUTUOUS AND LIABLE TO BE DISMISSED. WE DISMISS THE SAME. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 12. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH JULY , 2010. SD/- SD/- (A.D. JAIN) (A.K. GA RODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 30..7.2010. HMS . I.T.A. NO.4824-48/DEL/09 6/6 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).