DCIT (Exemptions) , CHENNAI V. Apollo Hospital Educational Trust , CHENNAI

ITA 1640/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6198 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 23-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANN MARY BA
• Assessee Lawyers: T BANUSEKAR
• Section: 12; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , # , ' ( BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ./ ITA NOS.1639 & 1640/MDS/2017 '# # /ASSESSMENT YEARS: 2010-11 & 2011-12 THE DY. COMMISSIONER OF INCOME- TAX (EXEMPTIONS), CHENNAI CIRCLE, AAYAKAR BHAVAN, ANNEXE BUILDING, III FLOOR, 121, M.G.ROAD, NUNGAMBAKKAM, CHENNAI-600 034. VS. M/S.APOLLO HOSPITAL- EDUCATIONAL TRUST, NO.21, GREAMS LANE, OFF GREAMS ROAD, CHENNAI-06 [PAN: AAATA 7077 M ] ( * /APPELLANT) ( +,* /RESPONDENT) ASSESSEE BY : MR.T.BANUSEKAR, CA DEPARTMENT BY : MS.ANN MARY BABY, JCIT . /DATE OF HEARING : 12.09.2017 . /DATE OF PRONOUNCEMENT : 13.09.2017 / O R D E R PER BENCH : ITA NOS.1639 & 1640/MDS/2017 ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-17, CHENNAI, IN ITA NOS.03, 74/14-15/CIT(A)-17 DATED 31 .03.2017 FOR THE AYS 2010-11 & 2011-12. 2. MS.ANN MARY BABY, JCIT, REPRESENTED ON BEHALF OF THE REVENUE AND SHRI MR.T.BANUSEKAR, CA, REPRESENTED ON BEHALF OF T HE ASSESSEE. ITA NOS.1639 & 1640/MDS/2017 :- 2 -: 3. AS BOTH THE APPEALS ARE RELATED TO THE SAME ASSE SSEE AND ARE HAVING IDENTICAL ISSUES, THE SAME ARE DISPOSED OFF BY THIS COMMON ORDER. 4. IN THE REVENUE APPEAL, THE REVENUE HAS RAISED TH E FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO THE L AW AND FACTS OF THE CASE. 2.1 THE LD. CIT (A) ERRED IN HOLDING THAT THE ASSESSEE I S ELIGIBLE TO SET OFF OF BROUGHT FORWARD EXCESS APPLICATION OF FUNDS TO SUBS EQUENT YEARS. 2.2 THE LD. CIT (A) ERRED IN HOLDING THAT THERE IS AN EX CESS APPLICATION OF INCOME IN THE A.Y. 2003-04 AND THE ASSESSEE IS ELIGIBLE TO CA RRY FORWARD THE SAME AND OFF AGAINST THE SHORTFALL IN THE AY 2011-12 2.3 THE LD. CIT (A) FAILED TO OBSERVE THAT THERE IS NO P ROVISION IN THE INCOME TAX ACT IN RESPECT OF TRUSTS WHICH ALLOWS FOR DETERMINA TION OF LOSS U/S.11 AND CARRY FORWARD THE SAME TO SUBSEQUENT YEAR TO BE SET OFF A GAINST INCOME OF THE SUBSEQUENT YEAR. 2.4 THE LD.CIT (A) FAILED TO OBSERVE THAT THE SETTING OF F IS AGAINST THE SPIRIT OF THE PROVISIONS OF SECTION 11 AND SECTION 12 AND THE INT ENTION OF THE LEGISLATURE. 2.5 THE LD. CIT(A) FAILED TO CONSIDER THE DECISIONS IN T HE CASES OF RAMJID RAS VS.CIT [1965] 58 ITR 181 (ALL) AND PUSHPAWAWATI SINGH ANIA RESEARCH INSTITUTE OF LIVER, RENAL & DIGESTIVE DISEASES VS DY.DIT (200 9) 29 SOPT 316 (DEL) WHICH WERE RELIED ON BY THE ASSESSING OFFICER. 2.6 THE LD.CIT(A) FAILED TO OBSERVE THAT THE IF THERE WA S EXCESS EXPENDITURE IT WAS DELIBERATE AND COULD NOT BE CARRIED FORWARD BEING R ELATED TO EARLIER YEARS INCOME. 2.7 THE LD.CIT(A) FAILED TO OBSERVE THAT THE EXCESS APPL ICATION OF FUNDS IN EARLIER YEAR AMOUNTED TO DOUBLE BENEFIT, ONE BEING EXEMPT I NCOME AND THE OTHER BEING CARRY FORWARD OF LOSS. 2.8 THE LD.CIT(A) HAS FAILED TO NOTE THAT THE JURISDICTI ONAL ITAT IN THE ASSESSEES OWN CASE FOR ASST YEAR 2009-10 IN ITA NO.1403/MDS/20 13 DATED 04.03.2015 REMITTED THE ISSUE BACK TO THE FILE OF THE AO. 2.9 THE LD.CIT(A) HAS FAILED TO NOTE THAT THE RECENT DEC ISION OF THE HONBLE ITAT A BENCH IN THE CASE OF ANJUMAN-E-HIMAYATH-ISLAM VS.AD IT(EXEMPTION) IV ,CHENNAI FOR THE A.Y. 2009-10 REPORTED IN [2015] 59 TAXMANN.COM 379 (CHENNAI-TRIB) WAS IN FAVOUR OF THE DEPARTMENT. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEARNED CIT(APPEALS) MAY BE SE T ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 5. AT THE TIME OF HEARING, IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO -ORDINATE BENCH OF THIS ITA NOS.1639 & 1640/MDS/2017 :- 3 -: TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AY 2009 -10 IN ITA NO.1403/MDS/2013 DATED 04.03.2015 WHEREIN THE CO-OR DINATE BENCH OF THIS TRIBUNAL HAS HELD AS FOLLOWS: 8. GROUND NO. 4: NOT ALLOWING EXCESS APPLICATION OF EARLIER YEARS TO BE SET OFF AGAINST THE INCOME OF THE CURRENT YEAR. AT THE OUTSET, THE LD. A.R. SUBMITTED THAT THE IDEN TICAL ISSUE IN THE ASSESSEES OWN CASE IN ITA NO.2090/MDS./2012 AND ITA NO.2172/MDS./2012 VIDE OR DER DATED 21.02.2013 WAS REMITTED BACK TO THE FILE OF LD. ASSESSING OFFICER AND THEREFORE, THE LD. A.R. REQUESTED THAT IN THIS CASE ALSO THE MATTER MAY BE REMITTED BACK T O THE FILE OF LD. A.O. THE LD. D.R CONCEDED TO THE SUBMISSIONS OF THE LD. A.R. ACCORDI NGLY WE HEREBY REMIT BACK THE MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER WITH S IMILAR DIRECTIONS OF THE TRIBUNALS ORDER DATED 21.02.2013 MENTIONED SUPRA. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO -ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE IMMEDIA TELY PRECEDING ASSESSMENT YEAR, RESPECTFULLY FOLLOWING THE DECISIO N OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE F OR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, THE ISSUE IS RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION ON IDENTICAL LINES. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 13 , 2017, AT CHENNAI. SD/- SD/- ( ) ( SANJAY ARORA ) /ACCOUNTANT MEMBER ( # ) (GEORGE MATHAN) ' /JUDICIAL MEMBER ITA NOS.1639 & 1640/MDS/2017 :- 4 -: /CHENNAI, 2 /DATED: SEPTEMBER 13, 2017. TLN . +'34 54 /COPY TO: 1. * /APPELLANT 4. 6 /CIT 2. +,* /RESPONDENT 5. 4 +'' /DR 3. 6 ( ) /CIT(A) 6. # /GF