ACIT, Central Circle - XXIII, Kolkata, Kolkata V. M/s. Guru Nanak Educational Trust, Kolkata

ITA 1134/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3195 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L K S DAHIYA
• Assessee Lawyers: S L KOCHAR P
• Section: 260A; 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI N.S.SAINI, A.M. & SHRI MAHAVIR SINGH, J.M. ] I.T.A. NO.1134/KOL/2012 : ASSESSMENT YEAR : 2009-10 ACIT, C.C.-XXIII, KOL. VS- M/S. GURU NANAK EDUCATIONAL TRUST, KOL. PAN : AAATG 6799C ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 14.06.2013 DATE OF PRONOUNCING THE ORDER : 21.06.2013 APPEARANCES : FOR THE APPELLANT : SHRI L.K.S. DAHIYA, SR.DR : FOR THE RESPONDENT : SHRI S.L. KOCHAR , ADVOCATE O R D E R PER SHRI N.S.SAINI, A.M. : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF THE CIT(A), CENTRAL- III KOLKATA DATED THE 29 TH MAY, 2012 FOR THE ASSESSMENT YEAR 2009-10 BY TAKIN G THE FOLLOWING GROUNDS OF APPEAL:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO GRANT EXEMPTION U/S.1 1 OF THE I.T. ACT TO THE ASSESSEE TRUST WHEN THE ORDER DATED 20.03.2009 OF THE HONBLE ITAT CANCELING THE ORDER PASSED BY THE CIT, CENTRAL-III , KOL, ON 31.12.2008 U/S 12AA(3) OF THE ACT HAS BEEN APPEALED BEFORE THE HO NBLE HIGH COURT U/S 260A OF THE ACT AND IS NOT CONCLUSIVE AT THIS POIN T OF TIME. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO GRANT EXEMPTION U/S 1 1 OF THE I.T. ACT TO THE ASSESSEE WHEN THE STATUS OF THE ASSESSEE THAT WAS HELD AS AOP FOR THE REASON AS DISCUSSED IN THE ASSESSMENT ORDER WAS NO T CHALLENGED BY THE ASSESSEE. 2. THE FIRST GROUND OF APPEAL RELATES TO THE ORDER OF THE CIT(A) DIRECTING THE AO TO GRANT EXEMPTION UNDER SECTION 11 OF THE I.T. ACT TO THE ASSESSEE TRUST. 2 I.T.A. NO.1134/KOL/2012 M/S. GURU NANAK EDUCATIONAL TR UST A.Y.2009-10 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE TR UST WAS REGULARLY BEING ASSESSED TO TAX AS REGISTERED TRUST AND WAS GRANTED REGISTRATION UNDER SECTION 12A OF THE INCOME TAX ACT ON 31.10.2005. THE CIT, C-III , KOLKATA, VIDE ITS ORDER DATED 31.12.2008 PASSED UNDER SECTION 12AA(3), CANC ELLED THE REGISTRATION. THE ASSESSEE TRUST FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL, VIDE ITS ORDER DATED 20.03.2009, PASSED IN ITA NO.96/KOL/2009, QUA SHED THE ORDER OF THE CIT, C-III, KOLKATA AND ALLOWED THE ASSESSEES APPEAL. H OWEVER, THE AO COMPLETED THE ASSESSMENT, WITHOUT ALLOWING EXEMPTION UNDER SECTIO N 11 OF THE ACT TO THE ASSESSEE, HOLDING THE STATUS OF THE ASSESSEE TO BE AOP. THE AO DENIED EXEMPTION UNDER SECTION 11 TO THE ASSESSEE BY MAKING THE FOLL OWING OBSERVATION IN THE ASSESSMENT ORDER. IN THIS REGARD, IT MAY BE MENTIONED THAT LD. COMMIS SIONER OF INCOME TAX, CENTRAL-III, KOLKATA BY HIS ORDER U/S.12AA(3) OF T HE I.T. ACT DATED 31.12.2008 CANCELLED THE REGISTRATION OF THE TRUST WHICH IT ENJOYED U/S.12 OF THE I.T. ACT CIT(C)-III, KOLKATAS ORDER WAS HOWEV ER QUASHED BY ITAT, KOLKATA BY THEIR ORDER DATED 20.03.2009. THE DEPAR TMENT HAS HOWEVER FILED APPEAL BEFORE HONBLE CALCUTTA HIGH COURT AGAINST THE ORDER DATED 20.03.2009 OF ITAT, KOLKATA. HENCE, THE ASSESSEE I S ASSESSED IN THE STATUS OF AOP AND EXEMPTION U/S.11 OF THE ACT IS DENIED. 3.1 DURING THE COURSE OF HEARING OF THE APPEAL BEFO RE THE CIT(A), THE ASSESSEE FILED COPY OF THE ORDER OF THE TRIBUNAL WHEREIN THE ORDER UNDER SECTION 12AA(3) PASSED BY THE CIT,C-III, KOLKATA WAS QUASHED. THE A SSESSEE ALSO FILED ORDER DATED 26.11.2009 OF THE TRIBUNAL PASSED BY C BENCH, KOL KATA IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07 IN ITA NO. 1689/KOL/2009 AND OF A BENCH, KOLKATA IN ITA NO.1160/KOL/2011 FOR THE ASSE SSMENT YEAR 2008-09 WHERE THE DEPARTMENT HAD FILED THE APPEAL AGAINST THE ORD ER OF THE CIT(A), C-III, KOLKATA. THE TRIBUNAL, ON CONSIDERATION OF THE FACTS, HELD T HAT UNLESS AND UNTIL THE ORDER OF THE TRIBUNAL IS REVERSED BY THE HIGH COURT, IT HAS TO BE GIVEN EFFECT. THE TRIBUNAL, BY RELYING ON THE DECISION REPORTED IN 217 ITR 744 IN THE CASE OF CIT-VS- DARSHAN TALKIES, HELD THAT THE ORDER OF THE TRIBUNAL WAS TH E ORDER WHICH WAS BINDING AND ACCORDINGLY THE APPEAL OF THE DEPARTMENT WAS DISMIS SED. 3 I.T.A. NO.1134/KOL/2012 M/S. GURU NANAK EDUCATIONAL TR UST A.Y.2009-10 3.2 THE CIT(A), FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES CASE FOR THE ASSESSMENT YEARS 2006-07 AND 2008-09, HELD THAT THE ASSESSMENT FRAMED BY THE AO WAS NOT IN ACCORDANCE WITH LAW AND DIRECTED THE AO TO GRANT EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, IN VIEW OF THE FA CT THAT THE ASSESSEE TRUSTS REGISTRATION WAS RESTORED. 4. BEING AGGRIEVED AGAINST THE SAID ORDER OF THE LD . CIT(A), THE REVENUE HAS FILED APPEAL BEFORE US. IT WILL BE SEEN FROM THE GR OUNDS OF APPEAL TAKEN BEFORE US THAT THE GRIEVANCES PROJECTED BY THE REVENUE IS THA T THE CIT(A) ERRED IN DIRECTING THE AO TO GRANT EXEMPTION UNDER SECTION 11 OF THE I .T. ACT TO THE ASSESSEE TRUST, WHEN THE ORDER DATED 20.03.2009 OF THE TRIBUNAL CAN CELING THE ORDER PASSED BY THE LD. CIT, CENTRAL-III, KOLKATA ON 31.12.2008 UNDER S ECTION 12AA(3) OF THE ACT WAS APPEALED BEFORE THE HONBLE HIGH COURT UNDER SECTIO N 260A OF THE ACT AND IS NOT CONCLUSIVE AT THIS POINT OF TIME. NO MATERIAL HAS B EEN BROUGHT BEFORE US BY THE REVENUE TO SHOW THAT THE ORDER OF THE TRIBUNAL CANC ELING THE ORDER OF THE CIT, CENTRAL-III, KOLKATA DATED 31.12.2008 UNDER SECTION 12AA(3) OF THE ACT HAS BEEN REVERSED IN APPEAL BY THE HONBLE HIGH COURT OR THE OPERATION OF THE ORDER OF THE TRIBUNAL HAS BEEN STAYED BY THE HONBLE HIGH COURT. THEREFORE, WE DO NOT FIND ANY GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH T HE ORDER OF THE CIT(A), WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE I S DISMISSED. 5. GROUND NO.2 OF REVENUES APPEAL IS DIRECTED AGAI NST THE ORDER OF CIT(A) DIRECTING THE AO TO GRANT EXEMPTION UNDER SECTION 1 1 OF THE ACT TO THE ASSESSEE WHEN THE STATUS OF THE ASSESSEE WAS HELD AS AOP FOR THE REASONS DISCUSSED IN THE ASSESSMENT ORDER. 6. BRIEF FACTS OF THE CASE ARE THAT THE AO ASSESSED THE ASSESSEE AS AN AOP IN PLACE OF A TRUST BECAUSE THE LD. CIT,C-III, KOLKATA HAD CANCELLED THE REGISTRATION OF THE TRUST VIDE ORDER DATED 31.12.2008 PASSED UNDER SECTION 12AA(3) OF THE ACT. THEREAFTER, THE TRIBUNAL VIDE ITS ORDER DATED 20.03 .2009 IN ITA NO.96/KOL/2009 4 I.T.A. NO.1134/KOL/2012 M/S. GURU NANAK EDUCATIONAL TR UST A.Y.2009-10 QUASHED THE ORDER OF THE CIT, CENTRAL-III, KOLKATA CANCELING THE REGISTRATION UNDER SECTION 12AA(3) OF THE ACT. THUS, THE REGISTRATION CANCELLED BY THE LD. CIT WAS RESTORED IN APPEAL BY THE TRIBUNAL. THEREFORE, THE STATUS, IN WHICH THE TRUST WAS TO BE ASSESSED, HAS TO BE AS A TRUST AND NOT AS AN AOP . HENCE, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE AND DIRECT THE AO TO ASSES S THE ASSESSEE TRUST IN THE STATUS OF A TRUST AND NOT AS AN AOP. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THIS ORDER IS PRONOUNCED IN THE COURT ON 21 ST JUNE, 2013. SD/- SD/- (MAHAVIR SINGH) (N. S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED : 21 ST JUNE, 2013 COPY OF THE ORDER FORWARDED TO: 1. M/S. GURU NANAK EDUCATIONAL TRUST, 20, B.T. ROAD, K OLKATA 700 002. 2. ACIT, C.C.-XXIII,KOLKATA 3. THE CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.) 5 I.T.A. NO.1134/KOL/2012 M/S. GURU NANAK EDUCATIONAL TR UST A.Y.2009-10