Deputy Commisisoner of Income-tax, V. Shri Mukund Bhavan Trust,

ITA 1180/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9286 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: V L JAIN
• Keywords: Charitable institution; Maximum Marginal Rate; Benefit of exemption
• Section: 143(3); 12A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 223 /PUN/201 4 / ASSESSMENT YEAR : 20 10 - 11 SHRI MUKUND BHAVAN TRUST, 1105, RAVIWAR PETH, PUNE 411002 PAN : AAATS5170R ....... / APPELLANT / V S. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), PUNE / RESPONDENT . / ITA NO . 1180/PUN/2015 / ASSESSMENT YEAR : 2011 - 12 DEPUTY COMMISSIONER OF INCOME TAX, (EXEMPTION) CIRCLE, PUNE ....... / APPELLANT /VS. SHRI MUKUND BHAVAN TRUST, 1105, RAVIWAR PETH, PUNE 411002 PAN : AAATS5170R / RESPONDENT ASSESSEE BY : SHRI V.L. JAIN REVENUE BY : S HRI A.K. MODI / DATE OF HEARING : 15 - 06 - 2017 / DATE OF PRONOUNCEMENT : 28 - 0 6 - 2017 2 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 / ORDER PER VIKAS AWASTHY, JM : TH E ASSESSEE HAS FILED APPEAL IN ITA NO. 223/PUN/2014 ASSAILING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II, PUNE DATED 28 - 11 - 2013 FOR THE ASSESSMENT YEAR 2010 - 11. THE REVENUE HAS FILED APPEAL IN ITA NO. 1180/PUN/2015 AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 10, PUNE DATED 15 - 05 - 2015 FOR THE ASSESSMENT YEAR 2011 - 12. IN BOTH THE APPEALS, THE ISSUE INVOLVE D IS SAME I.E. W HETHER THE ASSESSEE IS ELIGIBLE TO CLAIM THE BENEFIT U/S. 11 & 12 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) DESPITE PURPORTED VIOLATION OF THE PROVISIONS OF SECTION 13(1)(C)(II) AND SECTION 13(2)(B) OF THE ACT. IN ASSESSMENT YEAR 2010 - 11, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS CONFIRMED THE ADDITION MADE BY ASSESSING OFFICER IN DENYING THE BENEFIT OF EXEMPTION U/S. 11 & 12 OF THE ACT. ON SAME SET OF FACTS THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE SUBSEQ UENT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2011 - 12 HAS REVERSED THE FINDINGS OF ASSESSING OFFICER AND ALLOWED THE APPEAL OF THE ASSESSEE. SINCE, THE ISSUE INVOLVED IN BOTH THE APPEALS IS ARISING FROM SAME SET OF FACTS , HENCE, THESE APPEALS ARE TAKEN UP TOG ETHER FOR ADJUDICATION AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS A TRUST AND WAS CREATED BY TRUST DEED DATED 10 - 02 - 1930 . THE ASSESSEE IS REGISTERED U/S. 12A OF THE ACT. THE MAIN SOURCE OF INCOME OF THE TRUST IS RENTAL INCOME FROM LETTING OUT OF COMMERCIAL PROPERTIES AND INTEREST FROM BANK DEPOSITS. DURING THE COURSE OF SCRUTINY ASSESSMENT IN ASSESSMENT YEAR 2010 - 11, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE 3 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 HAD GIVEN THREE SHOPS ON RENT I.E. SHOP NO. 2, 3 AND 4 AT 1105, RAVIVAR PETH, PUNE TO SHRI PURUSHOTTAM LOHIYA , ONE OF THE TRUSTEE S . THE RENT CHARGED BY THE TRUST FROM SHRI PURUSHOTTAM LOHIYA IN RESPECT OF AFORESAID SHOPS IS FAR LESS THAN THE MARKET RENT AND T HE RENT CHARGED FROM OTHER TENANTS IN THE SAME PREMISES. THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(C)(II) AND 13(2)(B) OF THE ACT AND DISALLOWED THE BENEFIT OF EXEMPTION ENJOYED BY THE ASSESSEE U/S. 11 AND 1 2 . T HUS, ADDITION OF RS.5,89,89,401/ - WAS MADE IN ASSESSMENT YEAR 2010 - 11. AGGRIEVED BY THE ASSESSMENT ORDER DATED 20 - 03 - 2013, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTIONS OF THE ASSESSEE AND CONFIRMED THE ADDITION. 3. IN ASSESSMENT YEAR 2011 - 12, THE ASSESSING OFFICER VIDE ORDER DATED 26 - 02 - 2014, PASSED U/S. 143(3) OF THE ACT FOR SIMILAR REASONS DENIED THE BENEFIT OF EXEMPTION U/S. 11 & 12 OF THE ACT FOR VIOLATING THE PROVISIONS OF SECTION 13 AND MADE ADDITION OF RS.8,52,51,264/ - . THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) GRANTED RELIEF TO THE ASSESSEE BY DELETING T HE ENTIRE ADDITION ON THE BASIS OF PROVISO TO SECTION 13(1)( C )(II) OF THE ACT. NOW, BOTH THE ASSESSEE AND THE REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL , ASSAILING THE FINDINGS OF FIRST APPELLATE AUTHORITY IN ASSESSMENT YEARS 2010 - 11 AND 2011 - 12, RESPECTIVELY . 4. SHRI V.L. JAIN APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HA S DENIED THE BENEFIT OF EXEMPTION U/S. 11 AND 12 OF THE 4 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 ACT IN ASSESSMENT YEAR 2010 - 11 ON THE GROUND THA T THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(C)(II) AND 13(2)(B) OF THE ACT. ADMITTEDLY, THE ASSESSEE HAS LET OUT PROPERTY TO ONE OF THE TRUSTEE AT LOWER RATE. THE LD. AR REFERRED TO THE RENT STATEMENT FOR ASSESSMENT YEAR 2010 - 11 AT PAGES 6 AND 7 OF THE ASSESSMENT ORDER. THE LD. AR CONTENDED THAT THE ASSESSEE TRUST WAS HAVING SEVEN COMMERCIAL PROPERTIES. THE PROPERTY AT SR. NO. 1, 2 AND 3 WERE RENTED OUT TO UNRELATED PARTIES. THE PROPERTY AT SR. NO. 4 OF THE TABLE HAS BEEN GIVEN ON RENT TO M/S. NANDA STORES WHEREIN ONE OF THE TRUST EE IS A PARTNER. THE PROPERTY AT SR. NO. 5 TO 7 HAVE BEEN GIVEN ON RENT TO SHRI PURUSHOTTAM M. LOHIYA ONE THE TRUST EE. THE LD. AR SUBMITTED THAT THE PROPERTY HAS BEEN GIVEN ON LOWER RATE OF RENT TO SHRI PURUS HOTTAM M. LOHIYA IN ACCORDANCE WITH THE COVENANTS OF THE TRUST DEED. THE TRUST WAS ESTABLISHED WAY BACK IN THE YEAR 1930. THE C LAUSE 2 OF THE TRUST DEED CATEGORICALLY STATES THAT THE TRUST EES AND THEIR LEGAL HEIRS ARE ELIGIBLE TO ENJOY THE PROPERTY WITHO UT PAYING RENT. THE LD. AR REFERRED TO TRUST DEED AT PAGES 40 TO 48 OF THE PAPER BOOK AND ITS ENGLISH TRANSLATION AT PAGES 49 TO 53 OF THE PAPER BOOK. THE LD. AR SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 13(1)(C)(II) , THE TRUST SHALL CEASE TO ENJOY THE BENEFIT OF EXEMPTION U/S. 11 & 12 IF ANY PART OF THE INCOME OR ANY PROPERTY OF THE TRUST DURING THE PREVIOUS YEAR IS USED OR APPLIED DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION 13(3). THE PERSON REFERRED TO IN C LAU SE (C) OF SUB - SECTION (1) INCLUDES THE TRUST EE OF THE TRUST. HOWEVER, THE PROVISO TO SECTION 13(1)(C)(II) MANDATES THAT WHERE THE TRUST IS CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF ACT , THE PROVISIONS OF C LAUSE (2) SHALL NOT APPLY , IF IT HAS BEEN SPECIFICALLY MENTIONED IN THE TRUST DEED REGARDING USE OF ANY PART OF PROPERTY OF TRUST BY ANY TRUSTEE OR HIS LEGAL HEIR. IN THE PRESENT CASE, THE 5 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 TRUST HAS GIVEN SHOPS EITHER DIRECTLY OR INDIRECTLY ON CONCESSIONAL RENT TO SHRI PURUSHOTTAM LOHIYA , ONE OF THE TRUST EES OF THE TRUST . SINCE, THE SHOPS HAVE BEEN GIVEN ON RENT TO SHRI PURUSHOTTAM LOHIYA IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF TRUST DEED, THERE IS NO VIOLATION OF PROVISIONS OF SECTION 13(1)(C)(II) , IN VIEW OF PROVISO TO SAID SECTION. 4 .1 THE LD. AR MADE AN ALTERNATE SUBMISSION , THAT IF AT ALL ANY DISALLOWANCE HAS TO BE MADE IT SHOULD BE RESTRICTED TO THE EXTENT OF VIOLATION OF PROVISIONS OF SECTION 13(1)(C)(II) AND 13(2)(B) OF THE ACT. 4.2 THE LD. AR SUBMITTED THAT IN THE SUBSEQUENT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2011 - 12 DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER FOR SIMILAR REASONS , IN FIST APPEAL THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER PROPERLY APPRECIATING THE PROVISO TO SECTION 13(1)(C)(II) OF THE ACT REVERSED THE FINDINGS OF ASSESSING OFFICER . THE LD. AR PRAYED FOR SETTING ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2010 - 11 AND CONFIRMING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2011 - 12. 5. PER CONTRA, SHRI A.K. MODI REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2010 - 11. THE LD. DR SUBMITTED THAT THE ASSESSEE CAN TAKE THE BENEFIT OF PROVISO TO SECTION 13(1)(C)(II) PROV IDED THE ASSESSEE IS IN OCCUPATION THE PROPERTY HAS MANDATED IN THE TERMS OF TRUST. THE LD. DR REFERRING TO C LAUSE 2 OF THE TRUST ASSERTED THAT THE PROPERTY MENTIONED IN TRUST DEED IS THE SECOND FLOOR OF THE BUILDING USED FOR RESIDENTIAL PURPOSE AT THE TI ME OF CREATION OF TRUST AND NOT THE SHOPS ON THE GROUND FLOOR. 6 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 5.1 THE LD. DR FURTHER POINTED THAT THE ASSESSEE IN HIS SUBMISSIONS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) FOR ASSESSMENT YEAR 2011 - 12 HAS ADMITTED THE FACT THAT THE SHOPS WERE GIVEN ON RENT TO SHRI PURUSHOTTAM LOHIYA DURING THE FINANCIAL YEAR 1988 - 89. THIS ADMISSION OF THE ASSESSEE CLEARLY INDICATES THAT AT THE TIME OF EXECUTION OF TRUST DEED THE PROPERTY MENTION IN C LAUSE (2) REFE R S TO RESIDENTIAL AREA OF THE PROPERTY AND NOT THE C OMMERCIAL AREA. HENCE, THE PROVISO WILL NOT APPLY IN THE CASE OF ASSESSEE. THE LD. DR PRAYED FOR SETTING ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2011 - 12 AND CONFIRMING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) I N ASSESSMENT YEAR 2010 - 11. 6. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW . THE ONLY DISPUTE IN THE PRESENT SET OF APPEALS IS; WHETHER THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 13(1)(C)(II) OF THE ACT. BEFORE PROCEEDINGS FURTHER IT WOULD BE RELEVANT TO FIRST SEE THE PROVISIONS OF AFORESAID SECTION. THE RELEVANT EXTRACT OF THE PROVISIONS OF SECTION 13(1)(C)(II) ARE REPRODUCED HERE - IN - BELOW : [SECTION 11 NOT TO APPLY IN CERTAIN CASES.] 13.(1) NOTHING CONTAINED IN SECTION 11 [OR SECTION 12] SHALL OPERATE SO AS TO EXCLUDE FROM THE TOTAL INCOME OF THE PREV IOUS YEAR OF THE PERSON IN RECEIPT THEREOF (A).. (B) .. (C) IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGIOUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THEREOF - (I).. 7 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 (II) IF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR THE INSTITUTION (WHENEVER CREATED OR ESTABLISHED) IS DURING THE PREVIOUS YEAR USED OR APPLIED, DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3): PROVIDED THAT IN THE CASE OF A TRUST OR INSTITUT ION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROVISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BEN EFIT OF ANY PERSON REFER - RED TO IN SUB - SECTION (3), IF SUCH USE OR APPLICATION IS BY WAY OF COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY RULE GOVERNING THE INSTITUTION: PROVIDED FURTHER THAT IN THE CASE OF A TRUST FOR RELIGIOUS PURPOSES OR A RELIGIOUS INSTITUTION (WHENEVER CREATED OR ESTABLISHED) OR A TRUST FOR CHARITABLE PURPOSES OR A CHARITABLE INSTITUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PROVISIONS OF SUB - CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLIC ATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB - SECTION (3) IN SO FAR AS SUCH USE OR APPLICATION RELATES TO ANY PERIOD BEFORE THE 1ST DAY OF JUN E, 1970 ; A BARE PERUSAL OF THE ABOVE PROVISIONS OF SECTION 13(1)(C) (II) SHOW THAT IN CASE ANY INCOME OR PROPERTY OF THE TRUST IS USED EITHER DIRECTLY OR INDIRECTLY FOR THE BENEFIT OF TRUSTEE OR ANY PERSON REFERRED TO SUB - SECTION (3) OF SECTION 13 , THE BENEFITS GRANTED TO THE TRUST U/S. 11 SHALL BE FORFEITED. HOWEVER, THE FIRST PROVISO TO SECTION 13(1)(C) PROVIDES AN EXCEPTION . ACCORDING TO FIRST PROVISO BENEFIT DERIVED BY THE TRUSTEE OR THE PERSON MENTIONED IN SUB - SECTION (3) SHALL NOT DEBAR THE TRUST F ROM AVAILING THE BENEFIT OF SECTION 11 AND 12 , IF : (I) THE TRUST IS CREATED OR ESTABLISHED PRIOR TO THE COMMENCEMENT OF THE ACT ; AND (II) THE BENEFIT EXTENDED TO THE TRUSTEE OR THE PERSON REFERRED TO IN SUB - SECTION (3) IS IN COMPLIANCE WITH THE MAN DATORY TERMS OF THE TRUST. 8 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 7. IN THE PRESENT CASE, THE ASSESSEE HAS PLACED ON RECORD A COPY OF THE TRUST DEED AT PAGES 40 TO 48 OF THE PAPER BOOK. THE T RUST D EED IS IN MARATHI LANGUAGE . THE ENGLISH TRANSLATION OF THE T RUST D EED IS AT PAGES 49 TO 53 OF T HE PAPER BOOK. A PERUSAL OF THE TRUST DEED SHOWS THAT THE TRUST WAS CREATED IN THE YEAR 1930 I.E. MUCH PRIOR TO THE ENACTMENT OF INCOME TAX ACT, 1962 . THUS, THE FIRST CONDITION TO FALL WITHIN THE SCOPE OF PROVISO TO SECTION 13(1)(C)(II) OF THE ACT IS SAT ISFIED . 8. AS REGARDS SECOND CONDITION I.E. THE BENEFIT TO BE GRANTED TO THE ASSESSEE OR THE PERSON REFERRED TO IN SUB - SECTION (3) IN APPLICATION OR USES OF THE PROPERTY OR INCOME OF TRUST IS CONCERNED, THE USE OR APPLICATION OF THE PROPERTY SHOULD BE I N COMPLIANCE OF THE MANDATORY TERMS OF THE TRUST. FROM PERUSAL OF ENGLISH TRANSLATION OF THE TRUST DE ED IT APPEARS THAT THE TRUSTEES WERE IN POSSESSION OF THE RESIDENTIAL PART OF THE PROPERTY ON SECOND FLOOR. AS PER THE ASSERTIONS OF LD. AR, THE LEGAL HE IRS OF THE AUTHOR OF THE TRUST WERE IN POSSESSION OF PART OF PROPERTY ON GROUND FLOOR AS WELL. ADMITTEDLY, THERE IS A CLEAR MANDATE IN THE TRUST DEED THAT PART OF THE PROPERTY WHICH IS IN POSSESSION OF AUTHOR OF THE TRUST SHALL BE FOR THE SOLE PURPOSE OF OCCUPANCY BY THE AUTHOR OF THE TRUST OR HIS LEGAL HEIRS. THE PART OF THE PROPERTY WHICH IS SUBJECT MATTER OF DISPUTE ARE 3 SHOPS ON GROUND FLOOR OF THE BUILDING. FROM THE PERUSAL OF ENGLISH TRANSLATION OF TRUST D EED THE DETAILS OF THE PROPERTY IN POSSESSION OF THE AUTHOR OF THE TRUST AT THE TIME OF EXECUTION OF TRUST DEED IS NOT DISCERNIBLE. UNDER SUCH CIRCUMSTANCES, WE ARE OF CONSIDERED OPINION THAT THIS ISSUE NEEDS A RE - VISIT TO THE ASSESSING OFFICER. REPRESENTATIVE OF BOTH THE SIDES CONCUR ON TH E POINT THAT THE PART OF PROPERTY REFERRED TO IN THE T RUST D EED HAS TO BE CLEARLY IDENTIFIED. THE ASSESSING OFFICER IS DIRECTED TO ASCERTAIN THE PART OF 9 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 PROPERTY WHICH WAS IN THE POSSESSION OF AUTHOR OF THE TRUST AT THE TIME OF EXECUTION OF THE TRUST IN THE YEAR 1930 , QUA WHICH MANDATE HAS BEEN GIVEN FOR THE EXCLUSIVE USE BY THE AUTHOR OF THE TRUST AND HIS LEGAL HEIRS . 9. IN CASE THE SHOPS UNDER QUESTION ARE PART OF THE PROPERTY WHICH WAS IN POSSESSION OF THE AUTHOR OF THE TRUST DEED AT THE TIME OF EX ECUTION , THEN THE ASSESSEE CLEARLY FALLS WITHIN THE EXCEPTION AS MENTIONED IN PROVISO TO SECTION 13(1)(C)(II) OF THE ACT. 10. THE ASSESSEE HAS RAISED AN ALTERNATE PLEA BY WAY OF ADDITIONAL GROUND TO RESTRICT THE ADDITION TO THE EXTENT OF VIOLATION MADE U/ S. 13(1)(C)(II) AND 13(2)(B) OF THE ACT. THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SINHGAD TECHNICAL EDUCATION SOCIETY VS. ACIT IN ITA NO. 320/PUN/2010 FOR ASSESSMENT YEAR 2006 - 07 DECIDED ON 14 - 12 - 2016 HAS HELD THAT THERE CANNOT BE DENIAL OF EX EMPTION IN TOTO U/S. 11 OF THE ACT. THE BENEF I T OF EXEMPTION SHALL NOT BE AVAILABLE TO THE EXTENT THERE IS VIOLATION OF PROVISIONS OF SECTION 13(1)(C ) AND THE SAME BE BROUGHT TO TAX AT THE MAXIMUM MARGINAL RATE. IN CASE THE ASSESSING OFFICER COMES TO THE CONCLUSION THAT SHOPS ARE NOT PART OF THE PROPERTY AS MANDATED IN THE TRUST DEED, T HE ADDITION HAS TO BE MADE TO THE EXTENT OF VIOLATION OF PROVISION OF SECTION 13(1)(C)(II) AND 13(2)(B) OF THE ACT. THE ASSESSING OFFICER BEFORE DECIDING THIS ISSUE AFRESH IN ACCORDANCE WITH OUR DIRECTIONS SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 11. IN VIEW OF OUR ABOVE FINDINGS BOTH THE APPEALS I.E. THE APPEAL BY THE ASSESSEE IN ASSESSMENT YEAR 2010 - 11 AND THE APPEAL OF THE DEPARTMENT IN 10 ITA NO S. 223/PUN/2014 & 1180/PUN/2015, A.YS. 2010 - 11 & 2011 - 12 ASSESSMENT YEAR 2011 - 12 ARE ALLOWED FOR THE STATISTICAL PURPOSE IN THE AFORESAID TERMS. 1 2 . IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE ALLOWED FOR THE STATISTICAL PURPOSE . ORDER PRONOUNCED ON WEDNESDAY, THE 28 TH DAY OF JUNE, 201 7 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 28 TH JUNE, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - II, PUNE 4. / THE CIT (CENTRAL), PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / ASSISTANT REGISTRAR , , / ITAT, PUNE