Sanjaya Memorial Institute of Technology, Berhampur V. ITO, Berhampur

ITA 112/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4408 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 25-02-2011
• Court: TRIBUNAL
• Department Lawyers: M R
• Assessee Lawyers: A K PADHY
• Keywords: Business income; Depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 112 AND 113/CTK/2010 / ASSESSMENT YEAR S 200 4 - 05 AND 2007 - 08 SANJAYA MEMORIAL INSTITUTE OF TECHNOLOGY, HILPATNA, BERHAMPUR, GANJAM 760 005, ORISSA PIN: AAAJS 0276 N - - - VERSUS - INCOME - TAX OFFICER, WARD - 3 ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI A.K.PADHY, AR / FOR THE RESPONDENT: / SHRI M.R.PANIGRAHI, DR / ORDER . . . , , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . TH ESE APPEAL S ARE FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER S OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) OF EVEN DATED THE 31 ST DECEMBER, 2010 FOR THE ASSESSMENT YEARS 2004 - 05 AND 2007 - 08. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO.112 /CTK/2010. 1. THAT THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT,1961 FOR THE ASSESSMENT YEAR 2004 - 2005 IS ILLEGAL, ARBITRARY A ND VITIATED IN LAW. 2. THAT THE IMPOSITION OF PENALTY OF 22,67,526 FOR THE ASSESSMENT YEAR 2004 - 05 IS ILLEGAL, ARBITRARY AND UNCALLED FOR TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OTHER GROUNDS APPEAL AND PUT - FORTH EVIDENCE AND URGE OTHER GR OUNDS DURING THE COURSE OF HEARING. 4. PRAYER: THE APPELLANT PRAYS THAT THE PENALTY ORDER FOR THE A.Y. 2004 - 05 MAY BE QUASHED IN THE INTEREST OF JUSTICE FOR WHICH THE APPELLANT SHALL AS IN DUTY BOUND EVER PRAY. I.T.A.NO. 112 AND 113/CTK/2010 2 3. IN ITA NO.113/CTK/2011, THE ASSESSEE H AS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT THE ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER U/S 1 43(3) OF THE INCOME TAX ACT,1961 FOR THE ASSESSMENT YEAR 2007 - 2008 IS ILLEGAL, ARBITRARY AND VITIATED IN LAW. 2. THAT THE DISALLOWANCE OF EXEMP TION UJS 10 (23 C) (VI) OF THE INCOME TAX ACT IS ILLEGAL, ARBITRARY AND UNCALLED FOR TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT THE DISALLOWANCE OF EXEMPTION SECTION 11,12 & 13 OF THE INCOME TAX ACT IS ILLEGAL, ARBITRARY AND UNCALLED F OR TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE CLAIM OF DEPRECIATION AMOUNTING TO 82,60,433 INSTEAD OF 54,85,189 DISALLOWED BY THE LEARNED A.O. AND SUBSEQUENTLY BY THE LEARNED CIT (APPEALS) IS UNJUSTIFIED AND UNCALLED FOR TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF CASE. 5. THAT THE TREATMENT OF INCOME OVER EXPENDITURE DURING THE Y EAR OF 36,15,083 ON VARIOUS HEAD OF INCOME SUCH AS BUSINESS INCOME OF 17,41,715, INCOME FROM HOUSE PROPERTY OF 17,843 AND INCOME FROM OTHER SOURCE OF 18,55,525 IS PURELY SURMISE AND UNJUSTIFIED IN LAW TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF TH E CASE. 6. THAT THE APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OTHER GROUNDS APPEAL AND PUT - FORTH EVIDENCE AND URGE OTHER GROUNDS DURING THE COURSE OF HEARING. 7. PRAYER: THE APPELLANT PRAYS THAT THE EXEMPTION U/S 10 (23C) (VI) AND SECTIONS 11,12 & 13 O F THE INCOME TAX ACT MAY ALLOWED TO THE INCOME OVER EXPENDITURE DURING THE YEAR UNDER APPEAL AND ALLOW CORRECT DEPRECIATION OF 82,60,433 INSTEAD OF 54,85,189 IN THE INTEREST OF JUSTICE FOR WHICH THE APPELLANT SHALL AS IN DUTY BOUND EVER PRAY. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE ASSESSEE AND THEIR LEGAL IMPLICATIONS. 4. FIRST WE TAKE UP ITA NO.11 2/CTK/2011. THE ASSESSEE HAS FILED THIS APPEAL AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE PENALTY LEVIED U/S.271(1)(C) OF THEI.T.ACT,1961 FOR THE ASSESSMENT YEAR 200 4 - 05 . 5. DURING THE COURSE OF HEARING , THE LEARNED AR OF THE ASSESSEE MADE AVAILABLE THE ORDER OF THIS TRIBUNAL DT. 18.2.2 011 IN ASSESSEES OWN CASE, I.T.A.NO. 112 AND 113/CTK/2010 3 WHEREIN THE TRIBUNAL HAS RESTORED THE QUANTUM ASSESSMENT FOR THE ASSESSMENT YEAR 2004 - 05 TO THE FILE OF THE ASSESSING OFFICER. THE IMPUGNED PENALTY U/S.271(1)(C) HAVING BEEN PA SSED AS CONSEQUENTIAL TO THE ASSESSMENT MADE AND THE SAID ORDER OF ASSESSMENT HAVING BEEN ULTIMATELY SET ASIDE BY THE TRIBUNAL, THE PRESENT APPEAL PERTAINING TO LEVY OF PENALTY U/S.271(1)(C) HAS NO LEGS TO STAND AND AS SUCH, THE SAME IS CANCELLED. HOWEVER , WE OBSERVE THAT IF AFTER DE NOVO ASSESSMENT THE ASSESSING OFFICER IS OF THE VIEW THAT STILL THE ASSESSEE IS LIABLE TO PENALTY U/S.271(1)(C), THEN HE IS AT LIBERTY TO INITIATE THE SAME AND PASS NECESSARY CONSEQUENTIAL ORDER AS PER LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. IN VIEW OF THE ABOVE, WE ALLOW THE APPEAL OF THE ASSESSEE. 7. NOW COMING TO ITA NO.113/CTK/2011, DURING THE COURSE OF HEARING , THE LEARNED AR OF THE ASSESSEE MADE AVAILABLE TO THE TRIBUNAL THE COPY OF THE ORDER OF THIS TRIBUNAL DT.15.2.2011 DIRECTING THE LEARNED CIT TO GRANT REGISTRATION U/S.12A TO THE ASSESSEE. THE ASSESSMENT FOR THE ASSESSMENT YEAR 2007 - 08, WHICH IS NOW UNDER CONSIDERATION, HAS BEEN MADE ON THE GR OUND THAT THERE IS NO REGISTRATION U/S.12A GRANTED TO THE ASSESSEE. BUT VIDE ORDER DT.15.2.2011 IN CASE OF THE ASSESSEE, THIS TRIBUNAL HAS DIRECTED THE LEARNED CIT TO GRANT REGISTRATION/S.12A TO THE ASSESSEE W.E.F. 29. 8.1980 AND AS SUCH, THE ASSESSEE SHOUL D BE ASSESSED AS A REGISTERED SOCIETY U/S.12A. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ASSESSMENT HAS TO BE RE - DONE BY THE ASSESSING OFFICER IN THE LIGHT OF THE GRANT OF REGISTRATION TO THE ASSESSEE U/S.12A OF THE I.T.ACT,1961. WE SET AS IDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT CONSIDERING THE REGISTRATION GRANTED U/S.12A OF THE I.T.ACT,1961, OF COURSE STRICTLY FOLLOWING THE PRINCIPLES OF NATURAL JUS TICE AND PASS NECESSARY ORDER AS PER LAW. I.T.A.NO. 112 AND 113/CTK/2010 4 9. IN THE RESULT, ITA NO.112/CTK/2011 IS ALLOWED AND ITA NO.113/CTK/2011 IS ALLOWED FOR STATISTICAL PURPOSES . THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 13 TH MAY, 2011 SD/ - S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER. ( ) DATE: 13 TH MAY, 2011 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SANJAYA MEMORIAL INSTITUTE OF TECHNOLOGY, HILPATNA, BERHAMPUR, GANJAM 760 005, ORISSA 2 / THE RESPONDENT: COMMISSIONER OF INCOME - TAX, B HUBANESWAR 751 007 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY.