Deputy Commissioner of Income-tax, V. Dr. D.Y. Patil pratishthan, Kolhapur

ITA 1227/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9271 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 04-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Cancellation of registration
• Section: 143(3); 153A; 12A; 12AA; 12; 11

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1227/PUN/2015 / ASSESSMENT YEAR : 2011-12 DY.COMMISSIONER OF INCOME TAX , (EXEMPTION) CIRCLE, 2 ND FLOOR, B.O. BHAVAN, SECTOR NO.47, PLOT NO.1, PUNE SATARA ROAD, PUNE 411 009. . / APPELLANT V/S DR. D.Y. PATIL PRATISHTHAN, 2126, E-WARD, AJINKYATARA, TARABAI PARK, KOLHAPUR 416003. PAN : AATD5311R. . / RESPONDENT / APPELLANT BY : SHRI AJAY MODI / RESPONDENT BY : SHRI M.K. KULKARNI / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 1 & 2, KOLHAPUR DT.06.04.2015 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- 2.1 ASSESSEE IS A CHARITABLE TRUST ENGAGED IN RUNNING OF EDUCATIONAL INSTITUTIONS. ASSESSEE FILED ITS RETURN OF INCOME FOR / DATE OF HEARING : 04.07.2017 / DATE OF PRONOUNCEMENT: 07.07.2017 2 A.Y. 2011-12 ON 01.03.2013 DECLARING TOTAL INCOME AT RS.NIL. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSES SMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.28.03.2014 AND THE TOTAL INCOME WAS DETERMINED AT RS.3,73,32,130/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.C IT(A) WHO VIDE ORDER DT.06.04.2015 (IN APPEAL NO.KOP/204/14-15) ALLOWE D THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLO WING GROUNDS: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE EXEMPTION U/S. 11 OF THE I . T . ACT TO THE ASSESSEE IGNORING THE FACT THAT ACTIVITIES OF THE ASSESSEE ARE NO GENUINE AND ARE N OT BEING CARRIED OUT IN ACCORDANCE WITH THE OBJECTS OF THE TRUST. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWIN G THE EXEMPTION U/S. 11 WHEREIN REGISTRATION U/S. 12A WAS CANCELLED BY THE CIT AND THE ITA T 'S ORDER RESTORING THE REGISTRATION U/S 12A IS CHALLENGED BY THE REVENUE BEFORE THE HONBLE BOMBAY HIGH COURT. 3. WITHOUT PREJUDICE TO THE ABOVE, LD. CIT(A) HAS E RRED IN NOT EXERCISING HIS PLENARY POWERS WHICH ARE CONTERMINOU S WITH THAT OF ASSESSING OFFICER AS PER THE RATIO LAID DOWN BY CIT VS. KANPUR COAL SYNDICATE (1964) 54 ITR 225, 229(SC). 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) KOLHAPUR BE VACATED AND THAT ORDER OF THE A . O. BE RESTORED. 3. BEFORE US, AT THE OUTSET, LD.D.R. SUBMITTED THAT THOUGH THE REVENUE HAS RAISED VARIOUS GROUNDS BUT THE SOLE CONTRO VERSY IS WITH RESPECT TO ALLOWABILITY OF EXEMPTION U/S 11 OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTIC ED THAT THE SEARCH ACTION WAS CARRIED OUT ON 20.07.2005 AN D THEREAFTER ASSESSMENTS WERE COMPLETED U/S 153A R.W.S. 1 43(3) OF THE ACT FOR A.YS. 2000-01 TO 2006-07 WHEREIN THE EXEMP TION U/S 3 11 OF THE ACT WAS DENIED ON ACCOUNT OF CANCELLATION OF REGISTRATION U/S 12A OF THE ACT BY CIT. AO NOTED THAT AGAINST THE ORDER OF CIT, APPEAL WAS PREFERRED BY THE ASSESSEE BEFOR E TRIBUNAL. TRIBUNAL VIDE ORDER DT.28.11.2008 HAD ALLOWED THE APPEAL OF THE ASSESSEE. AGAINST THE ORDER OF THE TRIBUNA L, THE MATTER WAS CARRIED BY REVENUE BEFORE THE HONBLE HIGH C OURT AND THE DECISION OF HONBLE HIGH COURT IS AWAITED. HE FURTHER N OTICED THAT SINCE THE FACTS OF THE CASE FOR THE YEAR UNDER CON SIDERATION ARE IDENTICAL TO THAT OF EARLIER YEARS AND KEEPING IN VIEW THE CANCELLATION OF REGISTRATION U/S 12A OF THE ACT BY LD.CIT, AO DETERMINED THE ASSESSEES TOTAL INCOME AT RS.3,73,32,130/- BY APPLYING NORMAL PROCEDURES OF THE INCOME TAX ACT AND A LSO DENIED THE BENEFIT OF ACCUMULATION ON 15% OF TOTAL INCOME U /S 11 OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CAR RIED THE MATTER BEFORE LD.CIT(A) WHO DECIDED THE ISSUE IN FAVOUR OF T HE ASSESSEE BY HOLDING AS UNDER : 4. THE ISSUE OF DENIAL OF EXEMPTION UNDER SECTION 11 WAS A SUBJECT MATTER OF APPEAL IN THE APPELLANT'S OWN CAS E FOR ASSESSMENT YEARS 2007-08 AND 2008-09 BEFORE THE CIT (A)-CENTRAL, PUNE. THE CIT(A)-CENTRAL HAS VIDE HIS APPELLATE ORD ER NO. PN/CIT(A)-CENTRAL/DCIT CEN.CIR.KOL/64/11-12 DATED 12/03/2012 FOR ASSESSMENT YEAR 2008-09 HELD AS UNDE R: 7.3 A CAREFUL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD REVEALS THAT THE AO HAS NOT GIVEN ANY SPECIFIC REAS ON FOR DENIAL OF EXEMPTION U/S. 11 OF I.T. ACT TO THE APPE LLANT. HE HAS SIMPLY RELIED ON THE ASSESSMENT ORDER FOR EARLI ER YEARS. IN THIS CONNECTION IT MAY BE POINTED OUT THAT THE I SSUES RELATING TO RECOGNITION OF THE APPELLANT U/S. 12A O F I.T. ACT AND EXEMPTION U/S. 11 OF THE I.T. ACT HAVE BEEN DIS CUSSED IN DETAIL IN THE APPEAL ORDER OF THE APPELLANT FOR EARLIER ASSESSMENT YEARS INCLUDING THE A.Y. 2007-08 (PARA 6 TO 6.13). THE FACTUAL AND LEGAL POSITIONS OF THE APPEL LANT IN THE PERIOD RELEVANT FOR A.Y. 2008-09 REMAIN SUBSTANTIVE LY SAME AS THAT OF A.Y. 2007-08. IN. THE A.Y, 2008-09, THE AO HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW ANY VIOL ATION OF THE PROVISIONS WHICH MAKE THE APPELLANT INELIGIBLE FOR 4 EXEMPTION U/S. 11 OF I.T. ACT. THE REGISTRATION U/S . 12A OF THE I.T. ACT EVEN THOUGH CANCELLED BY CIT(CENTRAL), PUNE, STANDS RESTORED BY HON'BLE ITAT, PUNE. THEREFORE, T HE REGISTRATION U/S. 12A OF I.T. ACT IS AVAILABLE TO T HE APPELLANT IN THE PERIOD RELEVANT FOR A.Y. 2008-09. THE AO HAS NOT BROUGHT ANY SPECIFIC INSTANCE OF VIOLATION OF THE R ELEVANT PROVISIONS INCLUDING THE PROVISIONS OF SECTION 13(1 )(C) OF THE I.T. ACT. UNDER THE CIRCUMSTANCES, IN THE ABSENCE O F ANY SPECIFIC INSTANCE OF VIOLATION OF THE PROVISIONS MA KING THE APPELLANT INELIGIBLE FOR EXEMPTION U/S. 11, AVAILAB ILITY OF REGISTRATION U/S. 12A IN VIEW OF THE DECISION OF HO N'BLE ITAT AND DETAILED DISCUSSION IN THE APPEAL ORDER IN THE CASE OF THE APPELLANT FOR A.Y. 2007-08, I HOLD THAT THE APP ELLANT IS ELIGIBLE FOR EXEMPTION U/S. 11 OF I.T. ACT. THEREFO RE, THESE GROUNDS OF APPEAL ARE ALLOWED. 5. SAME ISSUE OF DENIAL OF EXEMPTION UNDER SECTION 11 WAS SUBJECT MATTER OF APPEAL FILED BY THE APPELLANT FOR ASSESSM ENT YEAR 2009- 10 WHICH WAS DISPOSED OFF BY MY PREDECESSOR IN OFFI CE IN FAVOUR OF THE APPELLANT VIDE ORDER DATED 29/06/2012 IN APPEAL NO. KOP/625/11-12. PERUSAL OF MATERIAL ON RECORD REVEAL S THAT THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER APPEAL. THE MATTER HAS BEEN EXAMINED IN DETAIL BY T HE CIT(A)- CENTRAL, PUNE, IN THE APPELLANT'S OWN CASE FOR ASSE SSMENT YEAR 2007-08 IN APPEAL NO.PN/CIT(A)-CEN.CIR./TR.IN/62/10 -LL DATED 31/10/2011 AND 2008-09 (SUPRA). I HAVE NO REASONS T O DEVIATE FROM THESE DECISIONS. THEREFORE, FOLLOWING THE DEC ISION OF THE CIT(A) CENTRAL, PUNE AND MY PREDECESSOR IN OFFICE O N THE SAME ISSUE IN THE EARLIER YEARS, I HOLD THAT THE APPELLA NT IS ELIGIBLE FOR EXEMPTION UNDER SECTION 11 OF THE ACT. THIS ISSUE IS DECIDED IN APPELLANTS FAVOUR. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPE AL BEFORE US. 5. BEFORE US, LD.D.R. SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHER HAND, REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT ON IDENTICAL FACTS, THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CAS E FOR A.Y. 2010-11 VIDE ORDER DATED 25.08.2014 HAD DISMISSED THE AP PEAL OF REVENUE AND HAD THUS DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE. HE PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE SUBMITTED THAT SINCE THE FACTS OF THE CASE IN T HE YEAR 5 UNDER APPEAL ARE IDENTICAL TO THAT OF A.Y. 2010-11 AND WH ICH HAS ALSO BEEN ADMITTED BY AO, NO INTERFERENCE TO THE ORDER OF LD.CIT(A) IS CALLED FOR. HE THUS SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DENIAL OF REGISTRATION U/S 12A OF THE ACT. WE FIND THAT IDENTICAL ISSUE AROSE IN ASSESSEES CASE IN A.Y. 2010-11 AND THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1569/PN/2013 ORDER DT.25.08.2014 HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND IDENTICAL GROUNDS WERE RAISED BY THE REVENUE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.1747/PN/2012 ORDER DATED 30-09 -2013 FOR A.Y. 2009-10 WHILE DECIDING THE ISSUE HAS DISMISSED THE GROUNDS RAISED BY THE REVENUE BY OBSERVING AS UNDER : 4. BEFORE US, IT WAS A COMMON GROUND BETWEEN THE P ARTIES THAT IN SO FAR AS THE CANCELLATION OF A REGISTRATIO N UNDER SECTION 12AA OF ACT BY THE COMMISSIONER IS CONCERNED THE SAME HAS BEEN RESTORED BY THE TRIBUNAL ON AN APPEAL BY THE ASSESSEE VIDE ITA NO.182/PN/2008 DATED 28.11.20 08. IT WAS ALSO A COMMON GROUND BETWEEN THE PARTIES THA T SIMILAR DISPUTE IN THE ASSESSEES OWN CASE HAS BEEN ADJUDICATED BY THE TRIBUNAL FOR ASSESSMENT YEARS 20 07-08 AND 2008-09 VIDE ITA NO.253/PN/2012 AND ITA NO.1372/PN/2012 DATED 25.06.2013 AND 11.09.2013 RESPECTIVELY. IT IS ALSO NOTABLE THAT IN THE ASSESS MENT YEAR 2006-07 ALSO THE TRIBUNAL IN ASSESSEES OWN CASE VI DE ITA NO.1592/PN/2011 DATED 14.12.2012 HAS HELD THAT THE ASSESSEE IS ENTITLED TO THE BENEFITS OF SECTION 11/ 12 OF THE ACT AND THAT THERE WAS NO VIOLATION OF THE PROVISIO NS OF SECTION 13(1)(C) OR 13(1)(D) OF THE ACT. IN VIEW OF THE AFORESAID PRECEDENTS, WHICH HAVE NOT BEEN ALTERED B Y ANY HIGHER AUTHORITY, IN OUR VIEW, THE AFORESAID GROUND S RAISED BY THE REVENUE DESERVE TO BE DISMISSED. MERELY BECA USE THE REVENUE HAS NOT ACCEPTED THE DECISION OF THE TR IBUNAL AND HAS FILED AN APPEAL BEFORE THE HONBLE HIGH COU RT IN AN EARLIER YEAR, CANNOT BE A GROUND TO TAKE A DIFFEREN T VIEW IN THE ABSENCE OF ANY ADVERSE ORDER CONTRARY TO THAT O F THE TRIBUNAL HAVING BEEN PASSED BY THE HONBLE HIGH COU RT. IN 6 VIEW OF THE AFORESAID PRECEDENTS, GROUNDS OF APPEAL NOS. 1 AND 2 ARE DISMISSED. 5.1 SINCE THE FACTS FOR THE IMPUGNED ASSESSMENT YEA R ARE IDENTICAL TO THE FACTS IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR WHICH HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVO UR AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOT ICE AGAINST THE ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF EXEMPTION U/S.11 O F THE I.T. ACT. MERELY BECAUSE THE REVENUE HAS FILED AN APPEAL BEFO RE HONBLE HIGH COURT, THE SAME IN OUR OPINION, CANNOT BE A GR OUND TO TAKE A DIFFERENT VIEW THAN THE VIEW TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ABSENCE OF ANY ADVERSE ORDER BY THE HON BLE HIGH COURT. IN THIS VIEW OF THE MATTER, WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE GROUNDS R AISED BY THE REVENUE ARE DISMISSED. SINCE THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL AR E IDENTICAL TO THAT OF EARLIER YEARS AND IN THE ABSENCE OF ANY MATER IAL PLACED ON RECORD TO DEMONSTRATE THAT THE DECISION OF THE TRIBU NAL IN ASSESSEES CASE FOR A.Y. 2010-11 HAS BEEN SET ASIDE / R EVERSED BY HIGHER JUDICIAL FORUM OR IN THE ABSENCE OF ANY CONTRARY BIN DING PLACED BY REVENUE, FOLLOWING THE REASONING OF THE COORDINAT E BENCH IN ASSESSEES OWN CASE IN A.Y. 2010-11, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND THUS THE GROUNDS OF REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED ON 7 TH DAY OF JULY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; ! DATED : 7 TH JULY, 2017. YAMINI 7 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. THE CIT(A)-1&2, KOLHAPUR. THE CIT-II, KOLHAPUR / CIT(CENTRAL), PUNE. #$% &&'(,* '(, / DR, ITAT, B PUNE; %,-./ GUARD FILE. / BY ORDER, // //// // TRUE COP // /// TRUE // //COPY // TRUE COPY // / 0123 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.