ADIT(E)-III, CHENNAI V. M/s. Animal Welfare Board of India, CHENNAI

ITA 1435/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64662 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER] I.T.A.NO.1435/MDS/2012 ASSESSMENT YEAR : 2008-09 THE ASST. DIRECTOR OF INCOME TAX (EXEMPTIONS)-III CHENNAI VS M/S ANIMAL WELFARE BOARD OF INDIA 13/1, THIRD SEAWARD BOARD VALMIKI NAGAR THIRUVANMIYUR CHENNAI 600 041 [PAN AAATA 6678A] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P JACOB, ADDL. CIT RESPONDENT BY : SHRI B. RAMAKRISHNAN, C.A DATE OF HEARING : 17-12-2012 DATE OF PRONOUNCEMENT : 17-12-2012 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-XII, CHENNAI, DATED 30.3.2012. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPE AL: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCO ME TAX(APPEALS) IS CONTRARY TO THE LAW AND FACTS OF TH E CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) HAS ERRED IN ANALYZING THE NATURE OF RECEIPTS. I.T.A.NO. 1435/2012 :- 2 -: 3. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) HAS NOT PROVIDED OPPORTUNITY TO THE ASSESSING OFFIC ER UNDER RULE 46A. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCE D AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE FRESTORE D. 3. THE DR SUBMITTED THAT GROUND NOS.1,2 & 4 ARE GENERA L IN NATURE. THEREFORE, NO SEPARATE ADJUDICATION IS REQ UIRED BY US ON THESE GROUNDS. 4. GROUND NO.3 OF THE APPEAL IS DIRECTED AGAINST THE O RDER OF THE CIT(A) IN VIOLATING RULE 46A OF THE INCOME TA X RULES BY ACCEPTING ADDITIONAL EVIDENCE WITHOUT GRANTING OPPO RTUNITY TO THE ASSESSING OFFICER. 5. THE DR SUBMITTED THAT BEFORE THE ASSESSING OFFICER WHEN IT WAS POINTED OUT TO THE ASSESSEE THAT THERE WAS SHO RTFALL OF ` 1,40,04,557/- IN APPLICATION OF INCOME WHICH WAS LI ABLE TO INCOME TAX, THE ASSESSEE FILED LETTER A BEFORE THE DIT(E) REQ UESTING CONDONATION FOR NON-EXERCISING OF OPTION UNDER CLAUSE 2 OF EXPL ANATION TO SECTION 11(1) OF THE ACT. THE SAID APPLICATION WAS REJECTE D VIDE DIT(E)NO.26(22)/2010-11 DATED 24.12.2010. HENCE, ` 1,40,04,557/- WAS TAXED IN THE HANDS OF THE ASSESSEE. I.T.A.NO. 1435/2012 :- 3 -: 6. BEFORE THE CIT(A), THE ASSESSEE FILED TERMS AND CO NDITIONS FOR RECEIPT OF GRANTS FROM THE GOVERNMENT OF ` 19,53,79,205/-. THE CIT(A), AFTER CONSIDERING THE TERMS AND CONDITIONS OF THE GRANTS, HELD THAT IF THE GRANTS WERE NOT UTILIZED BY THE ASSESS EE WITHIN THE STIPULATED TIME THEN THE SAID GRANTS WERE LIABLE TO BE RETURNED BY THE ASSESSEE TO THE GOVERNMENT AND THEREBY HELD THAT TH E SAME CANNOT BE TREATED AS INCOME OF THE ASSESSEE. 7. THE DR ARGUED THAT THE TERMS AND CONDITIONS OF THE GRANTS WHICH WERE FILED BEFORE THE CIT(A) FOR THE FIRST TI ME WERE NEVER FILED BEFORE THE ASSESSING OFFICER AND THE CIT(A) HAS ALS O NOT CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER BEFORE ACC EPTING THE SAME, THEREFORE, HE VIOLATED RULE 46A OF THE INCOME TAX R ULES. 8. THE A.R OF THE ASSESSEE, ON THE OTHER HAND, CONCUR RED WITH THE ABOVE SUBMISSIONS OF THE DR AND SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR READJUDICATION OF THE ISSUE AFRESH AFTER CONSIDERING THE TERMS AND CONDITIONS OF THE GRANTS RECEIVED BY THE ASSESSEE FROM THE GOVERNMEN T. 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSIN G THE MATERIALS ON RECORD, WE FIND THAT THE UNDISPUTED FA CTS ARE THAT THE TERMS AND CONDITIONS OF THE GRANTS RECEIVED FROM TH E GOVERNMENT BY THE ASSESSEE WERE NEVER FILED BEFORE THE ASSESSING OFFICER AND THE I.T.A.NO. 1435/2012 :- 4 -: ASSESSING OFFICER DID NOT HAVE THE OPPORTUNITY TO E XAMINE THE SAME. THE ASSESSEE FILED THE SAID TERMS AND CONDITIONS O NLY BEFORE THE CIT(A) AND THE CIT(A), BEFORE ACCEPTING THE SAME, H AS NOT GRANTED ANY OPPORTUNITY TO THE ASSESSING OFFICER BY CALLING FOR A REMAND REPORT FROM HIM. THUS, THERE HAS BEEN VIOLATION OF RULE 4 6A OF THE INCOME TAX RULES. 10. BOTH THE PARTIES BEFORE US HAVE AGREED THAT THE ISS UE MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION OF THE SAME AFRESH AFTER CONSIDERING THE TERMS AND CON DITIONS OF THE GRANTS RECEIVED BY THE ASSESSEE FROM THE GOVERNMEN T AND THEREAFTER TO DECIDE THE ISSUE AFRESH AS PER LAW. WE ORDER AC CORDINGLY. THE GROUND OF APPEAL OF THE REVENUE IS ALLOWED FOR STA TISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MONDAY, THE 17 TH OF DECEMBER, 2012, AT CHENNAI. SD/- SD/- (SATBEER SINGH GODARA) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 17 TH DECEMBER, 2012 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR