M/s. Sai Shyam Educational Society, Jammu V. The Income Tax Officer, Jammu

ITA 134/ASR/2012

• Counselvise Citation: 13420914 RSA 2012
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: U K HANDOO
• Keywords: Charitable institution; Corroborative evidences; Benefit of exemption
• Section: 143(3); 142(1); 12A; 12AA; 12; 28; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.134(ASR)/2012 ASSESSMENT YEAR:2007-08 PAN :AACTS8409H M/S. SAI SHYAM EDUCATIONAL SOCIETY VS. INCOME TAX O FFICER, CANAL ROAD, JAMMU. WARD 2(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. U.K. HANDOO, CA RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING:13/09/2012 DATE OF PRONOUNCEMENT:18/09/2012 ORDER PER BENCH ; THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF CIT(APPEALS), JAMMU, DATED16.02.2012 FOR THE ASS ESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LD. CIT(A), J & K CONFIRMING T HE ASSESSED INCOME OF RS.8626970/- MADE BY THE INCOME TAX OFFIC ER IN COMPUTING THE INCOME OF THE APPELLANT IS CONTRARY T O LAW & THE FACT OF THE CASE. 2. ON THE FACTS BROUGHT OUT ON RECORD THE LD. CIT(A ) OUGHT TO HAVE HELD THAT THE SOCIETY WAS REGISTERED U/S 12AA OF TH E INCOME TAX ACT, 1961. ITA NO.134(ASR)/2012 2 3. THAT THE AFFIDAVIT SUBMITTED BY THE APPELLANT HA S NOT BEEN COUNTERED BY THE INCOME TAX OFFICER WHILE FURNISHIN G REPLIES OF THE REMAND REPORT. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY G ROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A REGISTERED SOCIETY WITH THE REGISTRAR OF SOCIETIES (J&K) FILED ITS RET URN OF INCOME ON 29.10.2007 DECLARING INCOME AT NIL. THE AO PROCESS ED THE SAME ON THE RETURNED INCOME AND SUBSEQUENTLY THE CASE OF THE SO CIETY WAS SELECTED FOR SCRUTINY BECAUSE THE AO FOUND THAT THE ASSESSEE-SOC IETY IS NOT REGISTERED UNDER SECTION 10(23C)(VI)/12AA OF THE INCOME-TAX AC T, 1961 (IN SHORT, THE ACT). HE ISSUED NOTICE U/S 142(1) DATED 23/10/200 9 ALONG WITH A QUESTIONNAIRE WHICH WAS SERVED UPON THE ASSESSEE, IN RESPONSE TO THE SAME, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEA RED BEFORE THE AO AND FILED REPLY AND PRODUCED BOOKS OF ACCOUNT. THE AO A SKED THE ASSESSEE TO PRODUCE THE REQUIRED EXEMPTION CERTIFICATE U/S 10( 23C)(VI)/12AA OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT T HE SOCIETY HAS APPLIED FOR REGISTRATION U/S 12AA VIDE RECEIPT NO.1167 DATED 27 .06.2002 IN THE OFFICE OF THE COMMISSIONER OF INCOME TAX, JAMMU AND HE HAS ALSO PRODUCED XEROX COPY ALONGWITH FORM 10A BEFORE THE A.O. THE A .O. NOTICED THAT THERE IS SOME ERASING/DISTORTION AGAINST THE COLUMN OFFICE OF THE SO IT IS NOT ESTABLISHED IN WHICH OFFICE THE APPLICATION HAS BEE N MADE AND THERE IS ALSO ITA NO.134(ASR)/2012 3 CUTTING AGAINST THE COLUMN ANNEXURE/DOCUMENTS RECEI VED (DOCUMENTS ATTACHED) SO NATURE OF THE DOCUMENTS GOT RECEIPTED IS NOT CLE AR, THEREFORE, THE CLAIM OF APPLICATION U/S 12A IS NOT SUBSTANTIATED. THE AO HAS ALSO WRITTEN VIDE HIS LETTER DATED 18.11.2009 TO THE ITO (TECHNI CAL), TO ASCERTAIN THE FATE OF APPLICATION OF THE ASSESSEE-SOCIETY, WHO VIDE HI S REPLY DATED 14.12.2009 STATED THAT AFTER GOING THROUGH THE RECORD OF THIS OFFICE, THE RECORD KEEPER HAS INTIMATED THAT NO SUCH NAME EXISTS IN ANY REGISTER MAINTAINED FOR ENTERING TO WHOM APPLICATION U/S 12A(1)(A) OF THE ACT, IS GRANT ED. THE AO ALSO BROUGHT THIS FACT TO THE NOTICE OF THE LD. COUNSEL OF THE A SSESSEE-SOCIETY, WHO COULD NOT EXPLAIN SATISFACTORILY AND THE AO FIXED THE CAS E FOR 11.12.2009 ASKING THE ASSESSEE TO SHOW CAUSE AS TO WHY ITS STATUS MAY NOT BE TAKEN AS AN AOP (TAXABLE ENTITY) IN THE ABSENCE OF EXEMPTION CERTIF ICATE FOR THE RELEVANT YEAR AND WHY THE PROVISIONS OF SECTION 28 TO 44 MAY NOT BE APPLIED FOR COMPUTATION OF TAXABLE INCOME AND WHY PENALTY PROC EEDINGS UNDER SECTION 271(1)(C) AND 271B OF THE ACT, MAY NOT BE INITIATED AND FIXED THE CASE OF THE ASSESSEE FOR 18.12.2009. ON 18.12.2009, AGAIN THE A UTHORIZED REPRESENTATIVE OF THE ASSESSEE REPEATED THE SAME ARGUMENT AS HE HA S ALREADY REPEATED BEFORE THE AO AND LASTLY THE AO HAS HELD THAT THE ASSESSE E IS NOT REGISTERED UNDER SECTION 12AA FOR THE YEAR UNDER CONSIDERATION AND A SSESSEE-SOCIETY IS NOT ENTITLED FOR THE BENEFIT OF EXEMPTION U/S 11 & 12 O F THE ACT. HE TREATED THE INCOME OF THE ASSESSEE AS INCOME FROM BUSINESS TO B E ASSESSED UNDER SECTION ITA NO.134(ASR)/2012 4 28 OF THE ACT. ACCORDINGLY, THE SURPLUS OF RS.86,26 ,973/- IS ASSESSED INCOME OF THE ASSESSEE EARNED FROM THE BUSINESS OF IMPARTI NG EDUCATION TO BE TAXED, BY TREATING THE ASSESSEE-SOCIETY AS AOP VIDE ASSESS MENT ORDER DATED 29.12.2009 U/S 143(3) OF THE ACT. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 16.02 .2012 DISMISSED THE APPEAL FILED BY THE ASSESSEE. NOW THE ASSESSEE FIL ED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A). 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE LD. CIT(A) HAS WRONGLY CONFIRMED THE ADDITION IN DI SPUTED WHICH WAS MADE BY THE AO ON WRONG FOOTINGS. HE FURTHER STATED THAT THE LD. CIT(A) SHOULD HAVE HELD THAT THE SOCIETY WAS REGISTERED UNDER SEC TION 12AA OF THE ACT BECAUSE THE ASSESSEE-SOCIETY HAS ALREADY APPLIED FO R REGISTRATION U/S 12AA IN FORM NO.10 UNDER RECEIPT NO.1167 DATED 27.06.2002 I N THE OFFICE OF THE C.I.T. JAMMU. HE FURTHER STATED THAT THE OBJECT OF THE ASSESSEE-SOCIETY IS OF IMPARTING EDUCATION UNDER THE I.T.ACT, 1961 IS CHAR ITABLE ACTIVITY AND IS ENTITLED FOR REGISTRATION UNDER SECTION 12AA OF THE ACT. IN SUPPORT OF HIS CONTENTION, HE CITED THE JUDGMENTS OF HONBLE UTTRA NCHAL HIGH COURT IN THE CASE OF M/S. QUEENS EDUCATIONAL SOCIETY & ST. PAU L SENIOOR SECONDARY SCHOOL KATHGODAM REPORTED IN (2009) 223 CTR 355, H ONBLE SUPREME COURT IN THE CASE OF AMERICAN HOTEL & LOADING ASSOC IATION EDUCATIONAL ITA NO.134(ASR)/2012 5 INSTITUTE (2008) 216 CTR (SC) 377, ADITANAR EDUCAT ION INSTITUTION 224 ITR 310 (SC), PINEGROVE INTERNATIONAL CHARITABLE TRUST (CWP NO.6031 OF 2009) AND MASS SARSWATI EDUCATION TRUST (CWP NO.1321/2009 ). IN ADDITION TO THE SAID JUDGMENTS, THE LD. COUNSEL FOR THE ASSESSEE HA S ALSO FILED A SMALL PAPER BOOK CONTAINING PAGES 1 TO 38 IN WHICH HE HAS ATTA CHED VARIOUS DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE AND LASTLY SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE ALLOWED BY CANCELING THE IMPUGNED ORDER OF THE LD. CIT(A). 5. ON THE CONTRARY, THE LD. DR RELIED UPON THE ORDE R OF THE LD. CIT(A) AND STATED THAT THE ASSESSEE HAS FAILED TO ESTABLIS H THAT THE ASSESSEE-SOCIETY HAS FILED AN APPLICATION U/S 12AA IN THE OFFICE OF THE C.I.T. JAMMU AS ALLEGED BY THE LD. COUNSEL FOR THE ASSESSEE. THEREF ORE, IN THE ABSENCE OF THE SAME, THE JUDGMENTS CITED BY THE LD. COUNSEL FOR TH E ASSESSEE ARE NOT APPLICABLE AND THE LD. CIT(A) HAS RIGHTLY AND LEGAL LY PASSED THE IMPUGNED ORDER. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD AVAILABLE WITH US ESPECIALLY THE IMPUGNED ORDER ALONGWITH A SMALL PAPER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE. THE LD. COUNSEL FOR T HE ASSESSEE DREW OUR ATTENTION TOWARDS PAGE NO.2 AND STATED THAT THE ASS ESSEE HAS FILED AN ITA NO.134(ASR)/2012 6 APPLICATION UNDER SECTION 12AA IN THE OFFICE OF THE C.I.T. JAMMU VIDE RECEIPT NO.1167 DATED 27.06.2002. WE HAVE PERUSED T HE ALLEGED RECEIPT PRODUCED BY THE ASSESSEE AND ITS PAPER BOOK AT PAGE 2. WE HAVE ALSO PERUSED THE APPLICATION FOR REGISTRATION IN FORM NO.10A FIL ED BY THE ASSESSEE TO THE LD. CIT, JAMMU. AFTER RECEIVING THIS EVIDENCE, THE LD. CIT(A) CALLED FOR THE REPORT FROM THE A.O. CONCERNED ABOUT THE EXISTENCE OF APPLICATION FILED BY THE ASSESSEE AS WELL AS THE RECEIPT MENTIONED ABOVE . IN THE REMAND REPORT, THE AO HAS STATED THAT FROM THE REGISTER/RECORD AVAILABLE IN THE CIT OFFICE FOR THE SAID PERIOD NO SUCH APPLICATION WAS FOUND E NTERED . THE LD. CIT(A) HAS ALSO FOUND THAT THE RECEIPT AS WELL AS THE APPL ICATION FILED BY THE ASSESSEE IS UNSTAMPED AND THE NAME OF THE OFFICE WHERE THESE WERE FILED ARE NOT CLEARLY MENTIONED. EVEN OTHERWISE, THE ASSESSEE HAS ALSO FAILED TO PROVE ITS VERSION BEFORE THE AO AS WELL AS BEFORE THE LD. CIT (A) AND EVEN BEFORE US ABOUT THE EXISTENCE OF APPLICATION FOR REGISTRATION UNDER SECTION 12AA FILED IN FORM 10A ALONGWITH OTHER DOCUMENTARY EVIDENCE VI DE RECEIPT NO.1167 DATED 27.06.2002 AS ALLEGED BY THE ASSESSEE. IN THE ABSENCE OF ANY VALID RECEIPT OR OTHER SUPPORTING EVIDENCE , IT IS NOT PO SSIBLE TO HOLD THAT THE ASSESSEE HAS FILED AN APPLICATION FOR REGISTRATION U/S 12AA OF THE ACT ALONGWITH FORM 10A VIDE RECEIPT NO.1167 DATED 27/06 /2002. ITA NO.134(ASR)/2012 7 6.1. AS REGARDS THE JUDGMENTS CITED BY THE LD. COUN SEL FOR THE ASSESSEE MENTIONED IN PARA 2, THE SAME ARE NOT APPLICABLE T O THE FACTS OF THE PRESENT CASE, AS IN THE PRESENT CASE FILING OF APPLICATION ITSELF IS NOT ESTABLISHED. 6.2. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES O F THE CASE DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE F INDINGS GIVEN BY THE LD. CIT(A) IN THE IMPUGNED ORDER FOR REJECTING THE CON TENTIONS OF THE ASSESSEE ARE VALID AND ACCORDINGLY THE SAME ARE UPHELD. THUS , NO INTERFERENCE IS CALLED FOR IN THE DETAILED AND WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. ACCORDINGLY, THE APPEAL OF TH E ASSESSEE IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH SEPTEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18TH SEPTEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. SAI SHYAM EDUCATIONAL SOCIETY, J AMMU. 2. THE ITO WARD 2(3), JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.