Krishi Upaj Mandi Samiti, V. The D C I T 1 (1),

ITA 126/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1457 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Assessee Lawyers: C P RAWKA
• Keywords: Depreciation; Charitable institution; Opportunity of being heard; Set aside
• Section: 12A; 12; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.126/IND/2009 AY: 2005-06 KRISHI UPAJ MANDI SAMITI, DHAMNOD (PAN AAALK 0257 D) .....APPELLANT V/S. DY. CIT-1(1), INDORE .....RESPONDENT ASSESSEE BY : SHRI C.P. RAWKA, FCA DEPARTMENT BY : SHRI V.K. KARAN, SR. DR ORDER PER JOGINDER SINGH, JM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE OR DER OF LD. CIT(A)-I, INDORE, DATED 21.1.2009. DURING HEARING OF THIS APPEAL, WE HAVE HEARD THE LD. REPRESENTATIVES FROM BOTH SIDES AND CONSIDERED THE ARGUMENTS ADVANCED BY THEM. THE FIRST GROUND RAISED BY THE ASSESSEE IS TH AT THE LD. FIRST APPELLATE AUTHORITY FAILED TO APPRECIATE THAT THE REGISTRATIO N APPLICATION MADE U/S 12A WAS NOT DISPOSED OF WITHIN A PERIOD OF SIX MONTHS, THEREFORE, IT IS DEEMED TO HAVE BEEN GRANTED. AT THE OUTSET, THE LD. COUNSEL F OR ASSESSEE CONTENDED THAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION OF TH E TRIBUNAL IN THE CASE OF KRISHI UPAJ MANDI SAMITI, SENDHWA VS. ACIT (ITA NO. 374/IND/2009) ORDER DATED 20.10.2009. THIS ASSERTION OF THE ASSESSEE WA S NOT CONTROVERTED BY THE 2 REVENUE. IN VIEW OF THESE FACTS, WE ARE REPRODUCING HEREWITH THE RELEVANT PORTION FROM THE AFORESAID ORDER DATED 20.10.2009: 3. IN THE ASSESSEES APPEAL, APART FROM MERITS, THE ASSESSEE IN GROUND NO. 1 HAS STATED THAT THE ASSESSEE WAS ENTITLED FOR REGISTRATION AS A CHARITABLE INSTITUTION, FOR WHICH AN APPLICATION U/ S 12A HAD BEEN MADE ON 28 TH FEBRUARY, 2006. THE CLARIFICATIONS AS SOUGHT BY THE LD. CIT WERE ALSO FURNISHED VIDE LETTER DATED 19 TH SEPTEMBER, 2006, AND AGAIN ON 19 TH MARCH, 2007. THUS, THE ASSESSEE HAD COMPLIED WITH ALL THE REQUIREMENTS AS PRESCRIBED BY LAW. HOWEVER, THE LD. CIT NEITHER GRANTED NOR REFUSED THE REGISTRATION WITHIN THE SPECIFIED PERIOD OF SIX MONTHS, HENCE, IT WAS TO BE DEEMED THAT THE ASSESSEE HAD BEEN GRANTED REGISTRATION U/S 12A AND IF THAT BE SO, THEN, THE INCOME HAD TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 11 TO 13 OF THE ACT AS AGAINST BEING COMPUTED UNDER NORMAL PROVISIONS OF THE LAW. 4. THE LD. DEPARTMENTAL REPRESENTATIVES COMMENTS WERE SOUGHT. HOWEVER, SHE PREFERRED TO RELY ON THE ORDER OF THE LD. CIT IN RESPECT OF ASSESSEES APPEAL AND ON THE ORDER OF A.O. IN RESPECT OF APPEAL FILED BY THE REVENUE. 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW. ADMITTEDLY, IN THI S CASE, THE ASSESSEES APPLICATION OF REGISTRATION U/ S 12A HAS NOT BEEN REJECTED WITHIN THE PERIOD OF SIX MONTHS, HENCE, THE ASSESSEE IS DEEMED TO HAVE BEEN GRANTED REGISTRATION THEREUNDER. ACCORDINGLY, WE HOLD THAT THE ASSESSEE IS A CHARITABLE INSTITUTION. HENCE, GROUND NO.1 OF THE ASSESSEES APPEAL IS ALLOWED. THIS ASPECT HAS BEEN DEALT IN THIS APPEAL AS THIS ISSUE IS ARISING OUT OF THE APPELLATE ORDER. ACCORDINGLY, THE INCOME OF THE ASSESSEE IS TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 11 TO 13 OF THE ACT. HAVING STATED SO, THE OTHER GROUNDS OF THE ASSESSEES APPEAL AS WELL AS 3 REVENUES APPEAL ARE RESTORED TO THE FILE OF A.O. FOR CONSIDERATION THEREOF AFRESH AS PER LAW HAVING REGARD TO THE PROVISIONS OF SECTIONS 11 TO 13 OF TH E ACT. THUS, GROUND NO. 1 STANDS ALLOWED AND OTHER GROUNDS OF BOTH THE APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. 2. IN THE LIGHT OF THE ABOVE, THIS GROUND OF THE AS SESSEE IS ALLOWED AS THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12 A WAS NOT REJECTED WITHIN THE PERIOD OF SIX MONTHS. THE LD. ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE IN THE LIGHT OF THE AFORESAID REASONING/ORDER OF THE TRIBUNAL DATED 20.10.2009. NEEDLESS TO MENTION HERE THAT DUE OPPOR TUNITY BE PROVIDED TO THE ASSESSEE TO SUBSTANTIATE ITS STAND, THEREFORE, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. GROUNDS NO. 2 TO 5 RAISED BY THE ASSESSEE ARE AS UNDER: 2. THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND FAILED TO CONSIDER THE FACT THAT SAMITEE WAS ELIGIBLE FOR BENEFIT OF SECTION 11 TO 13 OF THE I.T. ACT 1961. 3. THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE DISALLOWANCE MADE BY ASSESSING OFFICER ON ACCOUNT OF EXCESS DEPRECIATION CLAIMED AT RS.960366/- WITHOUT CONSIDERING FULL FACTS. THE DISALLOWANCE MADE THEREFORE IS TOTALLY WRONG AND ILLEGAL ON THE FACTS OF THE CASE. 4 4. THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE DISALLOWANCE MADE BY ASSESSING OFFICER ON ACCOUNT OF EXCESS DEPRECIATION US/ 43(1) AT RS.633200/- WITHOUT CONSIDERING FULL FACTS. THE DISALLOWANCE MADE THEREFORE IS TOTALLY WRONG AND ILLEGAL ON THE FACTS OF THE CASE. 5. THAT THE LD. CIT(A) ERRED IN LAW AND FACTS OF THE CASE AND CONFIRMED THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF INTEREST ON FDRS NOT SHOWN AS INCOME AT RS.971336/- WITHOUT CONSIDERING FULL FACTS. THE ADDITION MADE THEREFORE IS TOTALLY WRONG AND ILLEGAL ON THE FACTS OF THE CASE. 4. SINCE THE ISSUE OF REGISTRATION U/S 12A OF THE A CT HAS BEEN ALLOWED AND THE ASSESSEE HAS BEEN TREATED AS CHARITABLE INSTITU TION, CONSEQUENTLY, THE AFORESAID GROUNDS (2 TO 5) ARE ALSO SET ASIDE TO TH E FILE OF THE LD. ASSESSING OFFICER FOR ADJUDICATION IN ACCORDANCE WITH LAW. NE EDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE A SSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUB STANTIATE ITS CLAIM, THEREFORE, THESE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO.6 IS GENERAL IN NATURE, REQUIRES NO DE LIBERATION FROM OUR SIDE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES ONLY. 5 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES ON THE CONCLUSION O F HEARING ON 24.11.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.11.2009 {VYAS} COPY TO: APPELLANT/RESPONDENT/CIT/ CIT(A)/DR