Shiksha Samiti, Mohindergarh V. ACIT, Rewari

ITA 167/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81580 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 19-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Capital expenditure
• Section: 12AA; 11

Judgement Text

ITA NO. 167/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 167/DEL/2013 A.Y. : 2009-10 SHIKSHA SAMITI, KANINA, DISTT. MOHINDERGARH MOHINDERGARH 9PAN: AAAJS3132P) VS. ACIT, CIRCLE REWARI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. R.S. SINGHVI, CA DEPARTMENT BY : SH. RAMESH KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ROHTA K DATED 12.11.2011 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER :- 1(I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, CIT(A) WAS NOT JUSTIFIED IN NOT ACCEPTING CLAIM OF EXEMPTI ON U/S. 10(23C)(VI) OF THE I.T. ACT, 1961 AMOUNTING TO RS. 15,64,379/-. (II) THAT IN THE ALTERNATIVE, THE AO SHOULD HAV E ALLOWED BENEFIT OF APPLICATION U/S. 11 IN RESPECT OF CLAIM OF ITA NO. 167/DEL/2013 2 EXPENSES AND CAPITAL EXPENDITURE IN ACCORDANCE WITH AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT AS THE SOCIETY IS DULY REGISTERED U/S. 12AA OF THE I.T. A CT, 1961. (III) THAT THE CLAIM OF DEEMED APPLICATION U/S. 11 HAS ALSO NOT BEEN ALLOWED EVEN THOUGH THE SAME IS REQUIRED TO BE ALLOWED AS PER THE SCHEME OF THE ACT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING DISALLOWANCE OF RS. 26,940/- BEING CLAIM OF ADVERTISEMENT EXPENSES WHIC H IS SUPPORTED BY AUDITED ACCOUNTS AND REPRESENT APPLICA TION OF INCOME. 3. THAT ORDERS OF THE LOWER AUTHORITIES ARE NOT JUS TIFIED ON FACTS AND SAME ARE BAD IN LAW. 3. BRIEFLY STATED FACTS IN THIS CASE ARE THAT THE ASSESSEE SOCIETY CLAIMED EXEMPTION OF RS. 15,64,379/- U/S. 10(23C)(V I) OF THE ACT AS THE ANNUAL RECEIPTS EXCEEDED RS. 1.00 CRORE. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTED THAT CCIT, PANCHKULA HAS NOT GRANTED EXEMPTION U/S. 10(23C)(VI) AND THEREFORE DISALLOWE D THE CLAIM AND THE SAME HAS BEEN CONFIRMED BY THE CIT(A) ALSO. 3.1 AS REGARDS ISSUE REGARDING SUSTAINING THE DIS ALLOWANCE OF RS. 26,940/- BEING CLAIM OF ADVERTISEMENT EXPENSES WHI CH IS SUPPORTED ITA NO. 167/DEL/2013 3 BY THE AUDITED ACCOUNTS AND PRESENT APPLICATION OF INCOME, THE SAME HAS ALSO BEEN DISALLOWED AND ADDED TO THE TOTA L INCOME OF THE ASSESSEE SOCIETY BEING NOT EXPLAINED THE REASONS OF THE EXPENSES AND LD. CIT(A) DISMISSED THE SAME AS NOT PRESSED A S THE NO SUBMISSIONS WERE MADE BEFORE HIM. 4. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL B EFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. LD. CIT(DR) RELIED UPON THE ORDERS OF THE AUTHORITIES B ELOW AND REITERATED TO UPHELD THE SAME. HOWEVER, ON THE OT HER HAND LD. COUNSEL OF THE ASSESSEE DURING THE HEARING BEFORE US FILED A COPY ORDER DATED 20.5.2010 PASSED BY THE HONBLE HIGH CO URT OF PUNJAB AND HARYANA AT CHANDIGARH IN THE CASE SHIKSHA SAMI TI VS. CCIT FOR IMMEDIATE STRICT COMPLIANCE ALONGWITH THE COPY ORDE R DATED 15.3.2010 PASSED IN CWP NO. 1509 OF 2010. THE RELEV ANT PORTION OF THE JUDGMENT DATED 20.5.2010 IN THE CASE OF THE ASS ESSEE IS REPRODUCED BELOW TO FACILITATE READY REFERENCE:- LD. COUNSEL FOR THE PETITIONERS RELY ON ORDER OF THIS COURT DATED 15.3.2010 IN CWP 1509 OF 2010 SHRI SHRI SHRI SHRI ATMANAND JAIN GURUKUL EDUCATIONAL ATMANAND JAIN GURUKUL EDUCATIONAL ATMANAND JAIN GURUKUL EDUCATIONAL ATMANAND JAIN GURUKUL EDUCATIONAL SOCIETY (GUJRANWALA) V. CHIEF COMMISSIONER OF SOCIETY (GUJRANWALA) V. CHIEF COMMISSIONER OF SOCIETY (GUJRANWALA) V. CHIEF COMMISSIONER OF SOCIETY (GUJRANWALA) V. CHIEF COMMISSIONER OF INCOME TAX INCOME TAX INCOME TAX INCOME TAX AND SUBMIT THAT THESE MATTERS ARE IDENTICAL WHICH IS NOT DISPUTED BY LEARNED COUNSEL FOR THE DEPARTMENT IN CASES WHERE NOTICES HAVE BEEN SERVED AND COUNSEL FOR THE ITA NO. 167/DEL/2013 4 DEPARTMENT HAVE PUT IN APPEARANCE. IN OTHER CASES ALSO, SINCE WE FIND THAT ISSUES ARE COMMON, WE ACCEPT STATEMENT OF LEARNED COUNSEL FOR THE PETITIONERS RESERVING LIBERTY TO DEPARTMENT TO EITHER MOVE THIS COURT OR TO TAKE COGNIZANCE OF THE MATERIAL DIFFERENCE, IF NAY, IN THE FRESH ORDER WHICH MAY BE PLEASED IN PURSUANCE OF THIS ORDER. 5.1 THE LD. COUNSEL OF THE ASSESSEE REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH, IN LIGHT OF THE AFORESAID JUDGMENT OF THE HONBLE HIG H COURT OF PUNJAB AND HARYANA. WE NOTE THAT LD. DR HAS NOT BROUGHT O UT ANY CONTRARY DECISION IN THIS BEHALF. IN OUR CONSIDERED OF OPIN ION, THE INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH. ACCORDINGLY, WE SET ASIDE THE SAME ISSUE TO THE AO TO CONSIDER THE SAME AFRESH, AFTER ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5.2 WITH REGARD TO ISSUE REGARDING SUSTAINING THE DISALLOWANCE OF RS. 26,940/- BEING CLAIM OF ADVERTISEMENT EXPEN SES IS CONCERNED, WE FIND THAT THE SAME WAS SUPPORTED BY T HE AUDITED ACCOUNTS. WE ALSO FIND THAT LD. AO HAS DISALLOWE D RS. 26,940/- ON ACCOUNT OF ADVT. EXPENSES FOR NON-EXPLANATION OF TH E EXPENSES AND THE LD. CIT(A) HAS DISMISSED THE SAME ON ACCOUNT OF NON- SUBMISSION. LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT ASSESSEE WAS NOT GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD NEITHER BY THE AO AND NOR BY THE LD. CIT(A), HENCE, HE REQUESTED THAT ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO CAN VASS ITS CLAIM BEFORE THE AO AND ACCORDINGLY, REQUESTED TO REMIT THIS ISSUE TO THE FILE OF THE AO FOR FRESH CONSIDERATION. WE FIND C ONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE ASSESSEE. THEREFORE, IN OUR CONSDIERED ITA NO. 167/DEL/2013 5 OPINION, INTEREST OF JUSTICE WILL BE SERVED IF TH E MATTER IS REMITTED BACK TO THE FILE OF THE AO TO CONSIDER THE SAME AFR ESH. ACCORDINGLY, WE REMIT THE SAME ISSUE TO THE FILE OF THE AO TO CO NSIDER THE SAME AFRESH AFTER VERIFYING THE EVIDENCES AND DOCUMENTS IN THIS BEHALF, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE AO AND PRODUCE THE NECESSARY DOCUMENTS BEFORE THE AO TO ENABLE HIM TO FINALISE THE ISSUE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/8/2014. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [ [[ [J.S. REDDY J.S. REDDY J.S. REDDY J.S. REDDY] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 20/8/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 167/DEL/2013 6