Asansol Durgapur Development Authority, Durgapur V. DCIT, Circle - 1, Durgapur, Durgapur

ITA 1195/KOL/2011

• Counselvise Citation: 119523514 RSA 2011
• Duration Of Justice: 3 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 16-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: ABHIJIT BISWAS
• Section: 148; 10; 12A

Judgement Text

I.T.A. NO S . 1 195 - 1197 / KOL ./20 1 1 ASSESSMENT YEAR: 200 5 - 20 0 6 TO 2007 - 2008 & I.T.A. NO S. 1008 - 1010/KOL./2012 ASSESSMENT YEAR: 200 5 - 20 06 TO 2007 - 2008 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI S.V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO S . 1 195, 1196 & 1197 / KOL / 20 1 1 ASSESSMENT YEAR S : 2005 - 2006, 200 6 - 20 0 7 & 2007 - 2008 ASANSOL D URGAPUR DEVELOPMENT AUTHORITY, ... .......... . . APPELLANT 1 ST ADMINISTRATIVE BUILDING, CITY CENTRE, DURGAPUR - 713 216 [PAN : AAA LA 0733 G ] - VS. - DEPUTY COMMISSIONER OF INCOME TAX, .. ..... ....... ..... . RESPONDE NT CIRCLE - 1, DURGAPUR, URMILA BUILDING , NANDLAL BITHI, CITY CENTRE, DURGAPUR - 713 216 & I.T.A. NO S . 1008, 1009 & 1010/KOL / 20 12 ASSESSMENT YEAR S : 2005 - 2006, 200 6 - 2007 & 2007 - 2008 ASANSOL DURGAPUR DEVELOPMENT AUTHORITY,.............. . APPELLANT 1 ST ADMINISTRATIVE BUILDING, CITY CE NTRE, DURGAPUR - 713 216 [PAN : AAALA 0733 G] - VS. - ASSISTANT COMMISSIONER OF INCOME TAX,................... . RESPONDENT CIRCLE - 1, DURGAPUR, AAYAKAR BHAWAN, URMILA BUILDING, NANDLAL BITHI, CITY CENTRE, DURGAPUR - 713 216 APPEARANCES BY: DR. SAMIR CHAK RABORTY, ADVOCATE, SHRI ARNAB CHAKRABORTY, ADVOCATE , & SHRI ABHIJIT BISWAS, ADVOCATE, FOR THE ASSESSEE SHRI NIRAJ KUMAR , CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : AUGUST 13 , 2 01 5 DATE OF PRONOUNCING THE ORDER : AUGUST 14 , 201 5 I.T.A. NO S . 1 195 - 1197 / KOL ./20 1 1 ASSESSMENT YEAR: 200 5 - 20 0 6 TO 2007 - 2008 & I.T.A. NO S. 1008 - 1010/KOL./2012 ASSESSMENT YEAR: 200 5 - 20 06 TO 2007 - 2008 PAGE 2 OF 5 O R D E R PER S.V. MEHROTRA : I.T.A. NOS. 1008, 1009 & 1010/KOL/ 2012 TH E S E A PPEAL S HA VE BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) , DURGAPUR D ATED 09 . 0 5 .20 1 2 , 09.05.2012 & 10.05.2012 FOR THE ASSESSMENT YEAR S 200 5 - 0 6, 2006 - 07 & 2007 - 08 RESPECTIVELY. 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THESE APPEALS. ACCORDINGLY, THESE APPEALS ARE BEING DISMISSED AS NOT PRESSED. 3. NOW WE TAKE UP ITA NOS. 1195 , 1196 & 1197 /KOL/2011. TH E S E AP PEAL S HA VE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR ALL DATED 15.07.2011 FOR THE ASSESSMENT YEAR S 2005 - 06 , 2006 - 07 & 2007 - 08 RESPECTIVELY . 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE, ASANSOL DURGAPUR DEVELOPMENT AUTHORITY (IN SHORT ADDA ) , HAS TO BE EXCLUDED FROM THE PURVIEW OF THE MEANING OF LOCAL AUTHORITY IN VIEW OF THE AMENDMENT MADE BY THE FINANCE ACT, 2002 W.E.F. 1 ST APRIL, 2003 UNDER SECTION 10 (20A) OF THE INCOME TAX ACT, 1961. HE FURTHER OBSERVED THAT AN APPLICATION FOR REGISTRATION UNDER SECTION 12A OF THE ACT WAS FILED BEFORE THE LD. CIT, DURGAPUR ON 19.03.2009 AND LD. CIT VIDE HIS ORDER DATED 10.09.2009 HELD THAT THE ACTIVITIES AND SOURCES O F INCOME OF THE ASSESSEE WERE CLEARLY RELATABLE TO TRADE, COMMERCE OR BUSINESS OR RENDERING ANY SERVICES IN RELATION TO TRADE, COMMERCE OR BUSINESS OR FOR A CESS, FEE OR OTHER CONSIDERATION, IRRESPECTIVE OF THE NATURE OF USE OR APPLICATION OR RETENTION OF INCOME FROM SUCH ACTIVITY. ACCORDINGLY, THE ASSESSEE WAS NOT ENTITLED FOR REGISTRATION UNDER SECTION I.T.A. NO S . 1 195 - 1197 / KOL ./20 1 1 ASSESSMENT YEAR: 200 5 - 20 0 6 TO 2007 - 2008 & I.T.A. NO S. 1008 - 1010/KOL./2012 ASSESSMENT YEAR: 200 5 - 20 06 TO 2007 - 2008 PAGE 3 OF 5 12A OF THE I.T. ACT AND THE APPLICATION WAS REJECTED. FROM THE AUDITED ACCOUNTS FURNISHED ALONG WITH THE APPLICATION FOR REGISTRATION UNDER SECTION 12A, IT WAS OBSERVED THAT THE AUTHORITY HAD GENERATED SUBSTANTIAL AMOUNT OF SURPLUS DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2007 - 08. SINCE THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME, NOTICE UNDER SECTION 148 WAS ISSUED. THE ASSESSEE VIDE ITS LETTER DATED 12.03.2010 CLAIMED THAT STATUS OF ADDA BEING CONSTITUTED UNDER SECTION 11 OF THE WEST BENGAL TOWN AND COUNTRY (PLANNING & DEVELOPMENT) ACT, 1979, COULD EITHER BE A LOCAL AUTHORITY OR A GOVERNMENT DEPARTMENT OR AGENCY OR IT WAS NOT A CORPORATE BODY . IT WAS FURTHER STATED THAT THE FUNCTIONS OF ADDA ARE AKIN TO THAT OF A LOCAL AUTHORITY AND THE CONTENTION WAS THAT THE ADDA IS A DEPARTMENT OF THE GOVERNMENT OF WEST BENGAL (URBAN DEVELOPMENT DEPARTMENT). THE ASSESSING OF FICER DID NOT ACCEPT THE ASSESSEE S CONTENTION AND FOLLOWING THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF ADITYAPUR INDUSTRIAL AREA DEVELOPMENT AUTHORITY VS. - UNION OF INDIA REPORTED IN (2006) 283 ITR 97 (SC) HELD THAT THE ASSESSEE COULD NOT C LAIM EXEMPTION FROM UNION TAXATION UNDER ARTICLE 289(1) OF THE CONSTITUTION OF INDIA NOR IT WAS POSSIBLE TO HOLD THAT THE INCOME DERIVED BY THE ASSESSEE WAS THE INCOME OF THE STATE GOVERNMENT. THE ASSESSING OFFICER ALSO OBSERVED THAT THE DECISION OF THE HO N BLE SUPREME COURT WAS UNDER SIMILAR CIRCUMSTANCES OF THE CASE. 5. BEING AGGRIEVED, THE ASSESSEE WAS IN APPEAL S BEFORE THE LD. CIT(APPEALS) AND THE LD. CIT(APPEALS) ALSO DISMISSED THE ASSESSEE S APPEAL S . AGGRIEVED, THE ASSESSEE IS IN APPEALS BEFORE THE T RIBUNAL. 6. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FILED BEFORE US A PAPER BOOK CONTAINING FOLLOWING DOCUMENTS: - (1) COPY OF THE WEST BENGAL TOWN AND COUNTRY (PLANNING & DEVELOPMENT) ACT, 1979, I.T.A. NO S . 1 195 - 1197 / KOL ./20 1 1 ASSESSMENT YEAR: 200 5 - 20 0 6 TO 2007 - 2008 & I.T.A. NO S. 1008 - 1010/KOL./2012 ASSESSMENT YEAR: 200 5 - 20 06 TO 2007 - 2008 PAGE 4 OF 5 (2) COPY OF THE MEMORANDUM DATED 5 TH JUNE, 1962; (3) COP Y OF THE NOTIFICATION DATED MARCH 17, 1980; (4) COPY OF THE NOTIFICATION DATED DECEMBER 02, 1980; (5) COPY OF THE NOTIFICATION DATED JULY 23, 1986; (6) COPY OF THE NOTIFICATION DATED MARCH 27, 1980; (7) COPY OF THE NOTIFICATION DATED MARCH 27, 1980; (8) CO PY OF THE NOTIFICATION DATED APRIL 02, 1980; (9) COPY OF THE NOTIFICATION DATED APRIL 02, 1980; (10) COPY OF THE NOTIFICATION DATED APRIL 02, 1980; (11) COPY OF THE FORM 1 & 2 RELATING TO APPLICATION FOR ASSESSMENT OF DEVELOPMENT CHARGES; (12) COPY OF THE ORDER DATED DECEMBER 26, 2012; (13) COPY OF THE LITERATURE; (14) COPY OF THE LEASE AGREEMENT, (15) COPY OF THE BIHAR INDUSTRIAL AREAS DEVELOPMENT AUTHORITY ACT, 1974, (16) COPY OF THE NOTIFICATION DATED SEPTEMBER 09, 1981. LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT BOTH THE LOWER AUTHORITIES HAVE NOT CONSIDERED THE AFOREMENTIONED STATUTORY REQUIREMENTS UNDER WHICH ADDA WAS CONSTITUTED. HE POINTED OUT THAT THE FACTS OBTAINING IN THE CASE OF ADITYAPUR INDUSTRIAL AREA DEVELOPMENT AUTHORITY VS. - UNION OF I NDIA (SUPRA) WERE ENTIRELY DIFFERENT FROM THAT OF ASSESSEE. HE SUBMITTED THAT SINCE THE RELEVANT PROVISIONS, NOTIFICATIONS, MEMORANDUM, ETC. HAVE NOT BEEN CONSIDERED, THEREFORE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJ UDICATION IN ACCORDANCE WITH LAW. 7. LD. CIT, D.R. VEHEMENTLY OPPOSED THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSING OFFICER HAS RE LIED ON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ADITYAPUR INDUSTRIAL AREA DEVELOPMENT AUTHORITY VS. - UNION OF INDIA REPORTED IN (2006) 283 ITR 97 (SC) OBSERVING THAT THE CIRCUMSTANCES WERE SIMILAR AS IN THE PRESENT CASES, BUT HE HAS NOT C ONSIDERED THE ABOVE NOTED RELEVANT I.T.A. NO S . 1 195 - 1197 / KOL ./20 1 1 ASSESSMENT YEAR: 200 5 - 20 0 6 TO 2007 - 2008 & I.T.A. NO S. 1008 - 1010/KOL./2012 ASSESSMENT YEAR: 200 5 - 20 06 TO 2007 - 2008 PAGE 5 OF 5 STATUTORY REQUIREMENTS APPLICABLE IN THE CASE OF ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(APPEALS) FOR ALL THE THREE YEARS AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO CONSIDERAT ION OF THE ENTIRE ISSUES IN THE LIGHT OF STATUTORY REQUIREMENTS AS FILED BY THE ASSESSEE IN THE PAPER BOOK. 9 . IN THE RESULT, ALL THE APPEAL S FILED BY THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES . 10. TO SUM UP, THE APPEALS BEING ITA NOS. 1008 , 1009 & 1010/KOL/2012 ARE DISMISSED AND THE APPEALS BEING ITA NOS. 1195, 1196 & 1197/KOL/2011 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH AUGUST , 201 5 . SD/ - SD/ - MAHAVIR SINGH S.V. MEHR OTRA ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 14 TH D AY OF AUGUST , 201 5 COPIES TO : (1) ASANSOL DURGAPUR DEVELOPMENT AUTHORITY, 1 ST ADMINISTRATIVE BUILDING, CITY CENTRE, DURGAPUR - 713 216 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1, DURGAPUR, URMILA BUILDING, NANDLAL BITHI, CITY CENTRE, DURGAPUR - 713 216 (3) COMMISSIONER OF INCOME - TAX (APPEALS) , DURGAPUR (4) COMMISSIONER OF INCOME TAX - , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .