ITO, SRIGANGANAGAR V. Krishi Upaj Mandi Samiti (Grain), SRIGANGANAGAR

ITA 124/JODH/2014

• Counselvise Citation: 12423314 RSA 2014
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-08-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 03-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Revised return; Reason to believe
• Section: 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 124 /JODH/2014 (A.Y. 200 5 - 06 ) IT O , WARD - 2 , VS. M/S. KRISHI UPAJ MANDI SAMITI SRIGANGANAGAR . (GRAIN), NEW DHAN MANDI, SRIGANGANAGAR. PAN NO. AABTK 0300 Q (APPELLANT) (RESPONDENT) ITA NO. 125/JODH/2014 (A.Y. 200 5 - 06 ) ITO, WARD - 2, VS. M/S. KRISHI UPAJ MANDI SAMITI SRIGANGANAGAR. NEW DHAN MANDI, GAJSINGHPUR . PAN NO. AABTK 0 293 L (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 05 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 07 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M 2 TH ESE TWO APPEAL S BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDER S , EACH , DATED 31 / 12 /2013 OF L D . CIT(A), BIKANER . SINCE THE COMMON ISSUE IS INVOLVED IN BOTH THESE APPEALS, SO THESE ARE DECIDED BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, HOWEVER, WRITTEN SUBMISSION HAS BEEN FURNISHED BY THE LEARNED COUNSEL F OR THE ASSESSEE WHICH IS PLACED ON RECORD, WHICH WE HAVE CONSIDERED ALONG WITH THE SUBMISSIONS OF THE LEARNED D.R. 3. FIRST WE WILL DEAL WITH I.T.A.NO. 124/JODH/2014 . THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF OF RS. 1,11,50,653/ - U/S. 11(1)(A) OF THE I.T. ACT, 1961. 4. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSING OFFICER REOPENED ASSESSMENT U/S. 1 48 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) BY RECORDING THE FOLLOWING REASONS ON 26/03/2012 : - THAT THE ASSESSEE HAS GROSS RECEIPTS OF RS. 7,43,37,680/ - AND INCURRED RS. 3,09,38,478/ - DURING THE YEAR. 85% OF GROSS RECEIPTS IS RS. 6,31,87,028/ - AND REMAINING AMOUNT RS. 3,22,48,550/ - (RS. 6,31,87,028/ - ( - ) RS. 3,0 9,38,478/ - ) IS TAXABLE, TO CLAIM EXEMPTION OF 15% OF GROSS RECEIPTS I.E. 3 RS. 1,11,50,652/ - (15% OF RS. 7, 43,37,680/ - ) THE ASSESSEE HAD TO FILE FORM NO. 10 AS PER RULES 17, WHICH HE HAS NOT FILED . SO THE LD. A.O. HAS REASON TO BELIEVE THAT INCOME OF RS. 1,11,50,652/ - CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE ASSESSING OFFICER DID NOT ALLOW EXEMPTION OF 15% OF GROSS PROFIT AMOUNTING TO RS. 1,11,50,652/ - , WHICH WAS CLAIMED AS EXEMPT BY THE ASSESSEE U/S. 11(1)(A) OF THE ACT . 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) , WHO ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE ITAT, JODHPUR BENCH IN I.T.A.NO. 390/ JU/2009 FOR THE A.Y. 2006 - 07 IN THE CASE OF KRISHI UPAJ MANDI SAMITI, GAJSINGHPUR. NOW , THE DEPARTMENT IS IN APPEAL. 6 . LEARNED D.R. ALTHOUGH SU PPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A) . 7 . LEARNED COUNSEL FOR THE ASSESSEE , IN HIS WRITTEN SUBMISSIONS STATED THAT THE ISSUE IS SQUARELY COVERED VIDE ORDER DATED 1 9/05/2014 OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF ITO, WARD - 2, SRIGANGANAGAR VS. M/S. KRISHI UPAJ MANDI SAMITI, DHAN MANDI, GAJSINGHPUR AND OTHERS IN I.T.A.NO. 4 80/JODH/2014, COPY OF THE SAID ORDER IS FURNISHED WHICH IS PLACED ON RECORD . 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. AND THE WRITTEN SUBMISSIONS FURNISHED BY THE LEARNED COUNSEL FOR THE ASSESSEE . IT IS NOTICED THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED BY THE AFORESAID REFE RRED TO ORDER DATED 19/05/2014 BY THIS BENCH OF THE TRIBUNAL, WHEREIN THE RELEVANT FINDINGS HAVE BEEN GIVEN AT PARA 7 WHICH READ AS UNDER: - 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT VIDE AFORESAID REFERRED TO ORDER DATED 23/11/2012 IN I.T.A.NO. 438/JU/2011 AND OTHERS FOR THE A.Y. 2008 - 09 IN THE CASE OF M/S. KRISHI UPAJ M ANDI SAMITI, DHAN MANDI, KESRISINGHPUR VS. ITO, WARD - 2, SRIGANGANAGAR. . THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 12 & 13 WHICH READ AS UNDER: - 12. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL ON RECORD, IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS ALREADY BEEN ADJUDICATED BY THIS BENCH OF THE TRIBUNAL IN THE ABOVE REFERRED TO ORDER DATED 1.9.2009 WHEREIN THE RELEVANT FINDING HAS BEEN GIVEN IN PARAS 6 & 7 OF THE SAID ORDER WHICH READ AS UNDER: - 6. WE HAVE HEARD THE PARTIES AND HAVE CAREFULLY PERUSED THE MATERIAL ON RECORD WITH REFERENCE TO SUB - RULE (6) OF RULE 18 OF APPELLATE TRIBUNAL RULES, 1963 AND THE PRECEDENTS CITED AT BAR. THE HON'BLE APEX COURT IN GOETZE (INDIA) LTD (SUPRA) HAS CLARIFIED THAT THE ISSUE AS REGARDS MAKING OF FRESH CLAIM FOR DEDUCTION OTHERWISE THAN FILING REVISED RETURN IS LIMITED TO THE POWERS OF ASSESSING AUTHORITY 5 AND DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL U/S 254 OF IT ACT. FOLLOWING THIS RATIO, WE ARE SATISFIE D THAT WHEN THE APPELLATE AUTHORITY INCLUDING THE LD. CIT(A), ENTERTAINS A NEW CLAIM AS SUCH, THE JUDGMENT RENDERED BY HON'BLE APEX COURT IN GOETZE (INDIA) LTD (SUPRA) DOES NOT IMPINGE ON HIS POWER TO ENTERTAIN THE CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING REVISED RETURN BEFORE THE ASSESSING AUTHORITY. THE LD. CIT(A), THEREFORE, CANNOT BE SAID TO HAVE COMMITTED ANY ERROR IN ENTERTAINING THE CLAIM FOR DEDUCTION MADE BEFORE HIM AS SUCH. 7. AS REGARDS DIRECTION GIVEN BY THE LD. CIT(A) TO ALLOW SET OFF OF ACCUMULATED EXCESS OF EXPENDITURE OVER INCOME OF THE YEAR UNDER CONSIDERATION, THE FACTS IN THE PRESENT APPEALS ARE AKIN TO THE FACTS AS WERE AVAILABLE BEFORE THE HIGH COURT OF JUDICATURE OF RAJASTHAN IN THE CASE OF CIT VS. MAHARANA OF MEWAR CHARITABLE FOUNDATION (SUPRA) WHEREIN IT HAS CLEARLY BEEN LAID DOWN THAT THE DEFICIT ARISING OUT EXCESS OF EXPENDITURE OVER INCOME IN THE PRECEDING YEAR SHOULD BE SET OFF AGAINST SURPLUS OF SUBSEQUENT YEAR, COMPUTING TAXABLE INCOME. IN THIS VIEW OF THE MATTER, THE JUDGMENT RENDERED BY HON'BLE RAJASTHAN HIGH COURT IN SUBSEQUENT DECISION IN THE CASE OF SHRI AKHEY RAM ISHWARI PRASAD TRUST VS CIT (SUPRA)BEING AT VARIANCE, IS NOT APPLICABLE IN ASMUCH AS IN THAT THE CASE THE ASSESSEE WAS SEEKING EXEMPTION U/S 11(1)(A) OF IT ACT EVEN THOUGH HE HAD INCURRED EXCESSIVE EXPENDITURE OVER HIS INCOME FOR THE RELEVANT ASSESSMENT YEAR IN WHICH SUCH EXEMPTION WAS BEING SOUGHT. THE REVENUE IS NOT PRECISELY ABLE TO SHOW THAT EXEMPTION U/S 11(1)(A) OF IT ACT STANDS DENIED IN EARLIER YE ARS WHERE ASSESSEE CLAIMS TO HAVE INCURRED EXCESSIVE EXPENDITURE OVER ITS INCOME. SINCE THE LD. CIT(A) ACTED WITHIN THE REALM OF POWERS VESTED IN HIM AND ISSUE AT HAND IS COVERED BY JUDGMENT RENDERED BY HON'BLE RAJASTHAN HIGH COURT IN MAHARANA OF MEWAR CHA RITABLE FOUNDATION (SUPRA) NO INFIRMITY CAN BE SAID TO HAVE BEEN COMMITTED BY HIM IN ALLOWING SET OFF OF ACCUMULATED EXCESS OF EXPENDITURE OVER INCOME OF YEAR UNDER CONSIDERATION IN ALL THE APPEALS BEFORE THE TRIBUNAL. GROUND RAISED BY REVENUE IN ALL THE APPEALS, THEREFORE, STANDS REJECTED. 13. SO RESPECTFULLY FOLLOWING THE ABOVE REFERRED TO ORDER DATED 1.9.2009 IN ITA NO.385/JU/2009 AND OTHERS FOR ASSESSMENT YEAR 2006 - 07 IN THE 6 CASE OF ITO, WARD 2, SRI GANGANAGAR AND OTHERS VS. KRISHI UPAJ MANDI SAMIT I, RIDMALSAR AND OTHERS, THIS GROUND OF THE ASSESSEE IS ALLOWED. 9 . SO, BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 19/05/2014 IN I.T.A.NO. 80/JODH/2014 AND OTHERS IN THE CASE OF ITO, WARD - 2, SRIGANGANAGAR VS. M/S. KRISHI UPAJ MANDI SAMITI, DHAN MANDI, GAJSINGHPUR AND OTHERS , WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT . 10 . FACTS INVOLVED IN I.T.A.NO. 125/JODH/2014 ARE IDENTICAL TO THE FACTS INVOLVED IN I.T.A.NO. 124/JODH/2014. THE ONLY DIFFERENCE IS IN THE FIGURE OF DISALLOWANCE MADE BY THE ASSESSING OFFICER , WHICH HAS BEEN DEL ETED BY THE LD. CIT(A) . THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS - MUTANDIS FOR THIS APPEAL ALSO. 11 . IN THE RESULT, APPEAL S OF THE DEPARTMENT ARE DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 07 TH AUGUST , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07 TH AUGUST , 201 4 . VR/ - 7 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .