Dy. CIT, Kolhapur V. Dr. D.Y.PATIL PRATISHTHAN, Kolhapur

ITA 1569/PUN/2013

• Counselvise Citation: 156924514 RSA 2013
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 12-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VERMA
• Keywords: Cancellation of registration
• Section: 143(3); 12A; 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1569/PN/2013 (ASSESSMENT YEAR 2010-11) DY.CIT, CIRCLE-2, KOLHAPUR .. APPELLANT VS. DR. D.Y. PATIL PRATISHTHAN, 2126, E-WARD, AJINKYA TARA, TARABAI PARK, KOLHAPUR .. RESPONDENT PAN NO.AAATD 5311R ASSESSEE BY : SHRI NIKHIL PATHAK & SHRI SANKET JOSHI RESPONDENT BY : SMT. M.S. VERMA, CIT DATE OF HEARING : 20-08-2014 DATE OF PRONOUNCEMENT : 25-08-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 30-05-2013 OF THE CIT(A) KOLHAPUR RELATING TO ASSESSMENT YEAR 2010-11. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE, AN EDUCATIONAL INSTITUTION, WAS ESTABLISHED IN THE YEAR 1990. IT W AS GRANTED EXEMPTION UNDER SECTION 11 AND WAS DULY REGISTERED UNDER SECT ION 12A OF THE ACT. HOWEVER, EXEMPTION UNDER SECTION 11 WAS LATER DENIE D TO THE TRUST AND REGISTRATION CANCELLED FOR INFRINGEMENT OF PROVISIO NS OF SECTION 13 OF THE ACT BY THE CIT(C), PUNE VIDE ORDER DATED 30/11/2007 . IT IS MENTIONED IN THE ASSESSMENT ORDER THAT CONSEQUENT UPON SEARCH AC TION, IN THE ASSESSMENTS FINALIZED FOR ASSESSMENT YEARS 2000-01 TO 2006-07, IT WAS 2 HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR BENEFIT S OF SECTION 11 AND 12 FOR VIOLATION OF SECTION 13 AND THE REGISTRATION UN DER SECTION 12A WAS TREATED AS CANCELLED. OBSERVING THAT THE FACTS AND CIRCUMSTANCES WERE NO DIFFERENT DURING THE YEAR UNDER CONSIDERATION AND A LSO KEEPING IN VIEW THE CANCELLATION OF REGISTRATION UNDER SECTION 12A BY THE CIT(C), PUNE, THE ASSESSING OFFICER PASSED THE IMPUGNED ORDER UND ER SECTION 143(3) ASSESSING ASSESSEE'S TOTAL INCOME AT RS. 22,65,76,2 31/- AFTER APPLYING NORMAL PROVISIONS OF THE INCOME-TAX ACT. RELEVANT P ART OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER : ......... IT IS SEEN THAT THE ASSESSEE HAS APPLIED FOR REGISTRATION AS PER THE PROVISIONS OF SECTION 12A. HOWEVER SINCE THE LD. CIT(C) HAS CANCELLED THE REGISTRATION GRANTED TO THE ASSES SEE; THE ASSESSEE CANNOT AVAIL OF THE BENEFITS OF SECTIONS 1 1 AND 12. IN VIEW OF THE ABOVE, THE STANDARD ACCUMULATION CLAIMED @ 15 PER CENT OF THE TOTAL AMOUNT OF INCOME SUBJECT OF THE P ROVISIONS FOR APPLICATION U/S 11(A) AMOUNTING TO RS.23,45,91,211/- IS NOT ALLOWED TO BE SET OFF AGAINST THE TOTAL INCOME. .... .. 3. IN APPEAL THE LD.CIT(A) FOLLOWING THE ORDERS OF HIS PREDECESSOR HELD THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION U/ S.11 OF THE I.T. ACT. THE RELEVANT OBSERVATION OF THE CIT(A) AT PARA 4 AN D 5 OF THE ORDER READS AS UNDER : 4. THE ISSUE OF DENIAL OF EXEMPTION UNDER SECTION 11 WAS A SUBJECT MATTER OF APPEAL IN THE APPELLANT'S OWN CASE FOR ASSESSM ENT YEARS 2007- 08 AND 2008-09 BEFORE THE CIT(A)-CENTRAL, PUNE. THE CIT(A)-CENTRAL HAS VIDE HIS APPELLATE ORDER NO. PN/CIT(A)-CENTRAL/DCIT CEN.CIR.KOL/64/11- 12 DATED 12/03/2012 FOR ASSESSMENT YEAR 2008-09 HELD AS UNDER: 7.3 A CAREFUL PERUSAL OF THE MATERIAL AVAILABLE ON R ECORD REVEALS THAT THE AO HAS NOT GIVEN ANY SPECIFIC REASON FOR DENIAL OF EX EMPTION U/S. 11 OF I.T. ACT TO THE APPELLANT. HE HAS SIMPLY RELIED ON TH E ASSESSMENT ORDER FOR EARLIER YEARS. IN THIS CONNECTION IT MAY BE POINTED O UT THAT THE ISSUES RELATING TO RECOGNITION OF THE APPELLANT U/S. 12A OF I.T. ACT AND EXEMPTION U/S. 11 OF THE I.T. ACT HAVE BEEN DISCUSSED IN DETAIL I N THE APPEAL ORDER OF THE APPELLANT FOR EARLIER ASSESSMENT YEARS INCLUDING THE A.Y. 2007-08 (PARA 6 TO 6.13). THE FACTUAL AND LEGAL POSITIONS OF THE APPELLANT IN THE PERIOD RELEVANT FOR A.Y. 2008-09 REMAIN SUBSTANTIVELY SAME AS THAT OF A.Y. 2007-08. IN. THE A.Y, 2008-09, THE AO HAS NOT B ROUGHT ON RECORD ANY 3 EVIDENCE TO SHOW ANY VIOLATION OF THE PROVISIONS WHICH MAKE THE APPELLANT INELIGIBLE FOR EXEMPTION U/S. 11 OF I.T. A CT. THE REGISTRATION U/S. 12A OF THE I.T. ACT EVEN THOUGH CANCELLED BY CIT(CE NTRAL), PUNE, STANDS RESTORED BY HON'BLE IT AT, PUNE. THEREFORE, THE REGI STRATION U/S. 12A OF I.T. ACT IS AVAILABLE TO THE APPELLANT IN THE PERIOD RELEVANT FOR A.Y. 2008- 09. THE AO HAS NOT BROUGHT ANY SPECIFIC INSTANCE OF VI OLATION OF THE RELEVANT PROVISIONS INCLUDING THE PROVISIONS OF SECTION 13(1)(C) OF THE I.T. ACT. UNDER THE CIRCUMSTANCES, IN THE ABSENCE OF ANY SPE CIFIC INSTANCE OF VIOLATION OF THE PROVISIONS MAKING THE APPELLANT INEL IGIBLE FOR EXEMPTION U/S. 11, AVAILABILITY OF REGISTRATION U/S. 12A IN VIEW OF THE DECISION OF HON'BLE ITAT AND DETAILED DISCUSSION IN THE APPEAL ORD ER IN THE CASE OF THE APPELLANT FOR A.Y. 2007-08, I HOLD THAT THE APP ELLANT IS ELIGIBLE FOR EXEMPTION U/S. 11 OF I.T. ACT. THEREFORE, THESE GROU NDS OF APPEAL ARE ALLOWED. 5. SAME ISSUE OF DENIAL OF EXEMPTION UNDER SECTION 11 WAS SUBJECT MATTER OF APPEAL FILED BY THE APPELLANT FOR ASSESSMENT YEAR 20 09-10 WHICH WAS DISPOSED OFF BY MY PREDECESSOR IN OFFICE IN FAVOUR OF T HE APPELLANT VIDE ORDER DATED 29/06/2012 IN APPEAL NO. KOP/625/11-12. PERUSAL OF MATERIAL ON RECORD REVEALS THAT THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER APPEAL. THE MATTE R HAS BEEN EXAMINED IN DETAIL BY THE CIT(A)-CENTRAL, PUNE, IN THE APPELLANT'S OWN CASE FOR ASSESSMENT YEAR 2007-08 IN APPEAL NO.PN/CIT(A)- CEN.CIR./TR.IN/62/10-LL DATED 31/10/2011 AND 2008-0 9 (SUPRA). I HAVE NO REASONS TO DEVIATE FROM THESE DECISIONS. THEREFORE, FOLLOWING THE DECISION OF THE CIT(A) CENTRAL, PUNE AND MY PREDECESSO R IN OFFICE ON THE SAME ISSUE IN THE EARLIER YEARS, I HOLD THAT THE APPELL ANT IS ELIGIBLE FOR EXEMPTION UNDER SECTION 11 OF THE ACT. THIS ISSUE IS D ECIDED IN APPELLANTS FAVOUR. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS NOT JUSTIFIED IN ALLOWING THE EXEMPTI ON U/S 11 OF THE IT ACT TO THE ASSESSEE IGNORING THE FACT THAT ACTIVITIES OF THE ASSESSEE ARE NO GENUINE AND NOT BEING CARRIED OUT IN ACCORDANCE WIT H THE OBJECTS OF THE TRUST. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT (A) WAS NOT JUSTIFIED IN ALLOWING THE EXEMPTI ON U/S 11 WHEREIN REGISTRATION U/S 12A WAS CANCELLED BY THE CIT AND THE ITAT'S ORDER RESTORING THE REGISTRATION U/S 12A IS CHALLENGED BY THE REVENUE BEFORE THE HON'BLE BOMBAY HIGH COURT. 3. WITHOUT PREJUDICE TO THE ABOVE, LD. CIT (A) HAS ERRED IN NOT EXERCISING HIS PLENARY POWERS WHICH ARE CONTERMINOUS WI TH THAT OF ASSESSING OFFICER AS PER THE RATIO LAID DOWN BY CIT VS. K ANPUR COAL SYNDICATE (19674)54 ITR 225,229 (SC). 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A ) KOLHAPUR BE VACATED AND THAT ORDER OF THE AO BE RESTORED. 4 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND MODIFY ANY OF THE ABOVE OR ALL GROUNDS RAISED AT THE TIME OF PROCEE DINGS BEFORE THE HON. TRIBUNAL WHICH MAY PLEASE BE GRANTED. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIN D IDENTICAL GROUNDS WERE RAISED BY THE REVENUE IN THE IMMEDIATELY PRECE DING ASSESSMENT YEAR. WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.1747/PN/2012 ORDER DATED 30-09-2013 FOR A.Y. 200 9-10 WHILE DECIDING THE ISSUE HAS DISMISSED THE GROUNDS RAISED BY THE REVENUE BY OBSERVING AS UNDER : 4. BEFORE US, IT WAS A COMMON GROUND BETWEEN THE PA RTIES THAT IN SO FAR AS THE CANCELLATION OF A REGISTRATION UNDER SECTI ON 12AA OF ACT BY THE COMMISSIONER IS CONCERNED THE SAME HAS BEEN RESTORED BY T HE TRIBUNAL ON AN APPEAL BY THE ASSESSEE VIDE ITA NO.182/PN/2008 DA TED 28.11.2008. IT WAS ALSO A COMMON GROUND BETWEEN THE P ARTIES THAT SIMILAR DISPUTE IN THE ASSESSEES OWN CASE HAS BEEN ADJUDICA TED BY THE TRIBUNAL FOR ASSESSMENT YEARS 2007-08 AND 2008-09 VIDE I TA NO.253/PN/2012 AND ITA NO.1372/PN/2012 DATED 25.06. 2013 AND 11.09.2013 RESPECTIVELY. IT IS ALSO NOTABLE THAT IN TH E ASSESSMENT YEAR 2006-07 ALSO THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO.1592/PN/2011 DATED 14.12.2012 HAS HELD THAT THE A SSESSEE IS ENTITLED TO THE BENEFITS OF SECTION 11/12 OF THE ACT AND THAT THERE WAS NO VIOLATION OF THE PROVISIONS OF SECTION 13(1)(C) OR 13 (1)(D) OF THE ACT. IN VIEW OF THE AFORESAID PRECEDENTS, WHICH HAVE NOT BEEN ALTERED BY ANY HIGHER AUTHORITY, IN OUR VIEW, THE AFORESAID GROUNDS RAISED BY THE REVENUE DESERVE TO BE DISMISSED. MERELY BECAUSE THE REVE NUE HAS NOT ACCEPTED THE DECISION OF THE TRIBUNAL AND HAS FILED A N APPEAL BEFORE THE HONBLE HIGH COURT IN AN EARLIER YEAR, CANNOT BE A GROUND TO TAKE A DIFFERENT VIEW IN THE ABSENCE OF ANY ADVERSE ORDER CO NTRARY TO THAT OF THE TRIBUNAL HAVING BEEN PASSED BY THE HONBLE HIGH COURT . IN VIEW OF THE AFORESAID PRECEDENTS, GROUNDS OF APPEAL NOS. 1 AND 2 AR E DISMISSED. 5.1 SINCE THE FACTS FOR THE IMPUGNED ASSESSMENT YEA R ARE IDENTICAL TO THE FACTS IN THE IMMEDIATELY PRECEDING ASSESSMENT Y EAR WHICH HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR AND TH E GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED, THEREFORE, IN ABSE NCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE AGAINST THE ORDER OF THE TRIBUNAL, WE DO 5 NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) A LLOWING THE CLAIM OF EXEMPTION U/S.11 OF THE I.T. ACT. MERELY BECAUSE T HE REVENUE HAS FILED AN APPEAL BEFORE HONBLE HIGH COURT, THE SAME IN OU R OPINION, CANNOT BE A GROUND TO TAKE A DIFFERENT VIEW THAN THE VIEW TAK EN BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ABSENCE OF ANY ADVERSE ORDER BY THE HONBLE HIGH COURT. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON 25-08-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 25 TH AUGUST 2014 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) KOLHAPUR 4 CIT KOLHAPUR 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE