M/s. S.D. Education Society, Haryana V. ACIT, Karnal

ITA 1197/DEL/2012

• Counselvise Citation: 119720114 RSA 2012
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 09-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH G BENCH G BENCH G BENCH G : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .1196/DEL/2012 & 1197/DEL/2012 1196/DEL/2012 & 1197/DEL/2012 1196/DEL/2012 & 1197/DEL/2012 1196/DEL/2012 & 1197/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2007 2007 2007 2007- -- -08 & 2008 08 & 2008 08 & 2008 08 & 2008- -- -09 0909 09 M/S S.D.EDUCATION SOCIETY, M/S S.D.EDUCATION SOCIETY, M/S S.D.EDUCATION SOCIETY, M/S S.D.EDUCATION SOCIETY, C/O GIR C/O GIR C/O GIR C/O GIRISH ANEJA, C.A. ISH ANEJA, C.A. ISH ANEJA, C.A. ISH ANEJA, C.A. 796, SECTOR 796, SECTOR 796, SECTOR 796, SECTOR- -- -13, U.E., 13, U.E., 13, U.E., 13, U.E., KARNAL KARNAL KARNAL KARNAL 132 001, 132 001, 132 001, 132 001, HARYANA. HARYANA. HARYANA. HARYANA. PAN : AABAS5001P. PAN : AABAS5001P. PAN : AABAS5001P. PAN : AABAS5001P. VS. VS. VS. VS. ASSTT.COMMISSIONER OF INCOME TAX, ASSTT.COMMISSIONER OF INCOME TAX, ASSTT.COMMISSIONER OF INCOME TAX, ASSTT.COMMISSIONER OF INCOME TAX, KARNAL CIRCLE, KARNAL CIRCLE, KARNAL CIRCLE, KARNAL CIRCLE, KARNAL. KARNAL. KARNAL. KARNAL. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GIRISH ANEJA, C.A. RESPONDENT BY : SMT.SRUJANI MOHANTY, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : IN THESE TWO APPEALS FILED BY THE ASSESSEE, THE CO MMON GROUNDS ARE RAISED. THEREFORE, FOR READY REFERENCE, WE REP RODUCE HEREIN BELOW THE GROUNDS OF APPEAL FOR AY 2007-08 AS UNDER:- 1. THE ORDER PASSED BY THE A.O., IN UTTER VIOLATIO N OF THE RESTRICTIONS IMPOSED UNDER PROVISO TO SECTION 143(3 ) OF THE ACT ON AN ASSESSING OFFICER IS ILLEGAL AND THE LD.CIT(APPEALS) HAS ERRED IN CONFIRMING THE SAME. 2. IGNORING THE EXEMPTION GRANTED AND SUBSISTING FO R THE AY 2007-08 TO THE ASSESSEE U/S 10(23C)(VI) OF T HE ACT, THE INCOME ASSESSED U/S 143(3) AT RS.42,02,646/- AG AINST RETURNED INCOME OF NIL BY THE A.O. IS ILLEGAL, AR BITRARY AND UNWARRANTED ON LAW AND FACTS AND THE LD.CIT(APPEALS ) HAS ERRED IN CONFIRMING THE SAME. ITA-1196 & 1197/DEL/2012 2 2. IN AY 2008-09 ALSO, IDENTICAL GROUNDS ARE RAISED WITH THE MODIFICATION IN THE FIGURE OF ASSESSED INCOME. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY THE LEARNED COUNSEL THAT THE CCIT, PANCHKULA GRANTED EXEMPTION UNDER SECTION 10(23C) TO THE ASSE SSEE SOCIETY FOR THE ASSESSMENT YEARS UNDER APPEAL I.E. 2007-08 & 20 08-09 VIDE ORDER DATED 26 TH MARCH, 2008. THAT HE WITHDREW THE EXEMPTION VIDE HIS ORDER DATED 12 TH JANUARY, 2010. THAT THE ASSESSEE FILED THE WRIT PETITION BEFORE THE HONBLE JURISDICTIONAL HIGH COU RT WHICH, VIDE ORDER DATED 20 TH MAY, 2010, QUASHED THE ORDER OF THE CCIT DATED 12 TH JANUARY, 2010 AND DIRECTED THE CCIT TO PASS A FRESH ORDER. HOWEVER, THE CCIT, PANCHKULA, VIDE ORDER DATED 14 TH FEBRUARY, 2011, PASSED AN ORDER WHEREIN HE KEPT THE MATTER IN ABEYANCE TILL T HE DECISION OF HONBLE SUPREME COURT. THE RELEVANT FINDING OF THE CCIT IN HIS ORDER DATED 14 TH FEBRUARY, 2011 READS AS UNDER:- THE SUBMISSION MADE BY HIM HAS BEEN CAREFULLY CONSIDERED BY ME. IN THIS RESPECT, I FIND THAT PRE SENT PROCEEDINGS ARE PURSUANT TO THE DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT DATED 20-05-2010 AND IS BEING ADJUDICATED AS PER THE SAID ORDER. FROM THE RECORDS, IT IS SEEN THAT THE ASSESSEE HAD MADE AN APPLICATIO N FOR APPROVAL U/S 10(23C)(VI) OF THE INCOME TAX ACT, 196 1 FOR ASSTT. YEAR 2006-07 TO 2008-09. APPROVAL FOR AY 20 07-08 AND 2008-09 WAS GRANTED VIDE ORDER DATED 27.03.2008 WHILE THE APPLICATION FOR AY 2006-07 WAS REJECTED. FURTHER, IN THE CASE OF THE ASSESSEE, FOR THE AY 20 07-08 AND 2008-09, WITHDRAWAL PROCEEDINGS FOR THE APPROVA L GRANTED AS PER ORDER 27.03.2008 FOR THE TWO YEARS W ERE INITIATED AND THEREAFTER VIDE ORDER DATED 12.01.201 0 THE EXEMPTION WAS WITHDRAWN AGAINST WHICH THE ASSESSEE HAD FILED A WRIT IN THE HIGH COURT. THE CURRENT PROCEE DINGS ARE ITA-1196 & 1197/DEL/2012 3 IN RESPONSE TO THE ORDER OF HONBLE HIGH COURT. AS OF NOW THE DECISION OF THE HONBLE SUPREME COURT IN THE SL P FILED IN CASES WHERE SIMILAR ISSUES ARE INVOLVED IS AWAIT ED. 16. KEEPING IN VIEW THE ABOVE FACTS & THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT, APPLICATION FO R GRANT OF EXEMPTION TO M/S S.D. EDUCATION SOCIETY FOR AY 2 007-08 AND 2008-09 IS TO BE KEPT IN ABEYANCE TILL THE DECI SION IN THE SUPREME COURT IN THE SLPS AS DISCUSSED IN PARA 15 ABOVE. 3. IN VIEW OF THE ABOVE, IT IS STATED BY THE LEARNE D COUNSEL THAT AS PER THE POSITION STANDING NOW, THE ORIGINAL EXEMPTI ON GRANTED BY THE CCIT VIDE ORDER DATED 26 TH MARCH, 2008 STANDS BECAUSE THE REJECTION OF THE SAME BY CCIT, PANCHKULA VIDE ORDER DATED 12 TH JANUARY, 2010 HAS BEEN QUASHED BY THE HONBLE JURISDICTIONAL HIGH COU RT AND THE FRESH ORDER HAS NOT BEEN PASSED SO FAR. HE, THEREFORE, R EQUESTED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO GRANT EXEMPTIO N UNDER SECTION 10(23) TO THE ASSESSEE. 4. THE LEARNED DR, ON THE OTHER HAND, STATED THAT T HOUGH THE HONBLE JURISDICTIONAL HIGH COURT HAS QUASHED THE O RDER OF THE CCIT DATED 12 TH JANUARY, 2010, BUT IT HAS ALSO DIRECTED THE CCIT T O PASS THE ORDER AFRESH. MEANING THEREBY, THE ORIGINAL ORDER DATED 26 TH MARCH, 2008 ALSO DOES NOT SURVIVE. OTHERWISE, THERE WOULD BE NO QUESTION OF PASSING OF THE FRESH ORDER. HE, HOWEVER, SUBMITTED THAT FROM THE ORDER OF THE CCIT DATED 14 TH FEBRUARY, 2011, IT IS EVIDENT THAT THE MATTER IS SUB JUDICE BEFORE THE HONBLE APEX COURT AND, ULTIMATELY, WHE THER THE ASSESSEE IS ENTITLED TO EXEMPTION UNDER SECTION 10( 23) OR NOT WILL BE ADJUDICATED BY THE HONBLE SUPREME COURT. HE, THER EFORE, SUGGESTED THAT EITHER THE ORDERS OF AUTHORITIES BELOW SHOULD BE ACCEPTED OR IN ANY ITA-1196 & 1197/DEL/2012 4 CASE, MATTER MAY BE SET ASIDE TO THE FILE OF THE AS SESSING OFFICER FOR READJUDICATION AS PER THE DECISION OF HONBLE APEX COURT IN THE MATTER. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, IN THE REJ OINDER, STATED THAT HE HAS NO OBJECTION TO THE ABOVE SUGGESTION OF THE LEARNED DR. 6. IN VIEW OF THE ABOVE, WE DEEM IT PROPER TO SET A SIDE THE ORDERS OF AUTHORITIES BELOW. WE ORDER ACCORDINGLY AND RESTOR E THE MATTER TO THE FILE OF THE ASSESSING OFFICER. WE DIRECT THE ASSES SING OFFICER TO AWAIT THE FRESH DECISION OF CCIT WHICH HE IS REQUIRED TO PASS AS PER THE ORDER OF HONBLE JURISDICTIONAL HIGH COURT DATED 12 TH JANUARY, 2010. THEREAFTER, HE WILL PASS THE ORDER IN ACCORDANCE WI TH THE DECISION OF THE CCIT GRANTING OR REFUSING EXEMPTION UNDER SECTI ON 10(23C) TO THE ASSESSEE. 7. IN THE RESULT, THE ASSESSEES APPEALS ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 18 TH MAY, 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 18.05.2012 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR