The Philanthropic Society of the Orthodox Church , Kolkata V. ITO (Exemption), Ward - 1(3), Kolkata , Kolkata

ITA 1401/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8487 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Set aside
• Section: 11; 12A; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.1401/KOL/2018 ASSESSMENT YEAR:2015-16 THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURCH, C/O SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, 3 RD FLOOR, KOLKATA-72 [ PAN NO.AAATT 3245 J ] / V/S . INCOME TAX (EXEMPTION) WARD-1(3), 10B, MIDDLETON ROW, 6 TH FLOOR, KOLKATA-700 071 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.JHAJHORIA, AR /BY RESPONDENT SHRI ARINDAM BHATTACHARYA, ADDL. CIT-DR /DATE OF HEARING 01/01/2019 /DATE OF PRONOUNCEMENT 04-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2015-16 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-25, KOLKATAS ORDER DATED 28.03.2018 PASSED IN CASE NO.57/CIT(A)-25/KOL//2017-18 INVOLVING PRO CEEDINGS U/S. 143(1) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE RAISES THE FOLLOWING SUBSTANTIVE GR OUNDS IN ITS INSTANT APPEAL:- 1. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES THE AO IS WHOLLY UNJUSTIFIED TO ALLOW DEDUCTION WITH RESPECT TO ACCUMULATION U/S.11 (2), WHILE PROCESSING THE INCOME TAX RETURN U/S. 143(1) DATED 15.09.2016, ONLY FOR RS. 1 ,00,00,000/- AS AGAINST CLAIM OF RS.L,25,00,000/- VIDE ITR FILED BY THE SOCIETY AND THEREBY ALLOWING TOTAL DEDUCTION OF RS.3,83,64,329/- ONLY AS AGAINST THE CLAIM OF THE A PPELLANT AT RS. 4,08,64,329/- IN ITS ITR AND THE LD. CIT(A) IS WHOLLY UNJUSTIFIED IN DIRECTING T HE AO TO ALLOW THE CLAIM TO THE APPELLANT AS PER ITS ITR FILED, AFTER SEEING WHETHER EXEMPTION C LAIMED BY THE APPELLANT IS PROPERLY UTILIZED TOWARDS CHARITABLE PURPOSES OR NOT, WHICH IS WHOLLY BEYOND THE PURVIEW OF PROCESSING U/S. 143(1), AND ACCORDINGLY IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE CLAIM OF ACCUMULATION U/S. 11 (2) MAY KINDLY BE DIRECTED TO BE ALLOWED AT RS.1,25,00,000/- AND ITA NO.1401/KOL/2018 A.Y 2015-1 6 THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURCH VS. ITO (EX) WD-1(3), KOL. PAGE 2 CONSEQUENTIALLY CLAIM OF TOTAL DEDUCTION MAY KINDLY BE DIRECTED TO BE ALLOWED AT RS.4,08,64,329/- AS PER ITR AND IN VIEW OF THE FACT S AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 2. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES THE AO IS WHOLLY UNJUSTIFIED TO ALLOW DEDUCTION WITH RESPECT TO ACCUMULATION U/S. 11 (2), WHILE PROCESSING THE INCOME TAX RETURN U/S. 143(1) DATED 15.09.2016, ONLY FOR RS. 1,00,00, 000/- AS AGAINST CLAIM OF RS.L,25,00,000/- VIDE ITR FILED BY THE SOCIETY AND THEREBY ALLOWING TOTAL DEDUCTION OF RS.3,83,64,3291- ONLY AS AGAINST THE CLAIM OF THE APPELLANT AT RS. 4,08,64,3 29/- IN ITS ITR AND THE LD. CIT(A) IS WHOLLY UNJUSTIFIED IN FURTHER DIRECTING THE AO TO ALLOW TH E CLAIM TO THE APPELLANT AS PER ITS ITR FILED, AFTER EXAMINING WHETHER THE ACTIVITIES OF THE APPEL LANT WERE COVERED U/S. 2(15) OF I. T. ACT, 1961, WHICH IS WHOLLY BEYOND THE PURVIEW OF PROCESS ING U/S. 143(1) AND THE DETAILS OF REGISTRATION OF SOCIETY HAVING DULY BEEN FURNISHED IN THE ITR FILED BY THE SOCIETY AND THE SOCIETY HAVING DULY BEEN ALLOWED BENEFIT OF SEC. 11 FROM YEAR TO YEAR AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE CLAIM OF ACCUMULATION U/S. 11(2) MAY KINDLY BE DIRECTED TO BE ALLOWED AT RS.1,25,00,000/- AND CONSEQUENTIALLY CLA IM OF TOTAL DEDUCTION MAY KINDLY BE DIRECTED TO BE ALLOWED AT RS4,08,64,329/- AS PER IT R AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 3. LEARNED AUTHORIZED REPRESENTATIVE AT THE OUTSET TAKES ME TO THE CIT(A)S DIRECTIONS ISSUED TO THE ASSESSING OFFICER AS UNDER :- THE APPELLANT IS A REGISTERED CHARITABLE TRUST U/S 12A OF THE ACT. THE APPELLANT CLAIMED THAT ITS INCOME OF RS.4,08,64,329 /- WAS APPLIED FOR CHARITABLE PURPOSE AND IT (APPELLANT) CLAIMED EXEMP TION U/S.11(1) & 11(2) OF THE ACT. THE APPELLANT CLAIMED DEDUCTION OF RS.1,25,00,000/- U/S. 11(2) OF THE ACT BUT THE AO, DURING THE CURSE OF PROCEEDING, HAS ALLOWED DEDUCTION OF RS.1,00,00,000/- ONLY TO THE APPELLANT. THE APPELLA NT ALSO CLAIMED THAT THE AO, IN THE IMPUGNED INTIMATION U/S. 143(1) OF THE ACT, HAS ALLOWED DEDUCTION OF RS.3,83,64,329/- AGAINST THE CLAIM OF THE APPELLANT OF RS.4,08,64,329/-. THE AO IS DIRECTED TO SEE WHETHER THE AMOUNT OF EXE MPTION CLAIMED BY THE APPELLANT IS PROPERLY UTILIZED TOWARDS CHARITABLE P URPOSES OR NOT. THE AO IS FURTHER DIRECTED TO EXAMINE THE ACTIVITIES OF THE A PPELLANT WHETHER THEY ARE COVERED U/S. 2(15) OF THE I.T ACT, 1961.IF THE SAME IS FOUND TRUE AND THE APPELLANTS CLAIM IS FOUND TRULY COMPLAINT WITH THE PROVISIONS OF SEC. 11(1)/11(2) OF THE ACT, THEN EXEMPTION/DEDUCTION CL AIMED BY THE APPELLANT MAY BE ALLOWED. IN CASE OF CONTRARY FACTS, DISALLOWANCE MADE BY THE AO STANDS CONFIRMED. 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. I NOTICE FIRST OF ALL THAT THE CIT(A) HAS SIMPLY SET ASIDE THE ASSESS EES LOWER APPEAL BACK TO THE ASSESSING OFFICER WITH SPECIFIC DIRECTIONS WITHOUT EVEN MAKING IT SURE AS TO WHETHER THE TAXPAYER HAD BEEN SERVED THE RELEVANT HEARING N OTICE(S) OR NOT. COUPLED WITH THIS, MR. BHATTACHERJYA FAILS TO DISPUTE THAT THE CIT(A) IS NO MORE VESTED WITH SET ASIDE ITA NO.1401/KOL/2018 A.Y 2015-1 6 THE PHILANTHROPIC SOCIETY OF THE ORTHODOX CHURCH VS. ITO (EX) WD-1(3), KOL. PAGE 3 JURISDICTION AS PER U/S. 251(1) (A) WITH EFFECT FRO M 01.06.2001. IT HAS FURTHER COME ON RECORD THAT CIT(A)S REMAND DIRECTIONS HAVE SIMPLY BRUSHED ASIDE THE ASSESSEES CASE WITHOUT EVEN DISCUSSING THE BASIC FACTS FOLLOWED BY A DETAILED ADJUDICATION U/S. 250(6) OF THE ACT. I THEREFORE DEEM IT APPROPRIATE TO REST ORE THE INSTANT LIS BACK TO THE CIT(A) FOR APPROPRIATE ADJUDICATION AS PER LAW AFTER AFFOR DING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 04/01/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 04/01/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-THE PHILANTHROPIC SOCIETY OF THE ORTHODO X CHURCH, C/O SALARPURIA J AJODIA &CO. 7, C.R. AVENUE, 3 RD FL,KOLKTA-72 2. /RESPONDENT-ITO (EX), WD-1(3), 10B, MIDDLETON ROW, 6 TH FL, KOLKATA-71 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',