DY CIT (EXEMPTION)-2(1), MUMBAI V. M/S. UTI INSTITUTE OF CAPITAL MARKETS (NOW KNOWN M/S. NATIONAL INSTITUTE SECURITIES MARKETS), MUMBAI

ITA 17/MUM/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0469 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 05-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 12A; 264; 10(23C)

Judgement Text

आयकर अऩीऱीय अधधकरण “F” न्यायऩीठ म ुंबई म ें । IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SRI KULDIP SINGH, JM AND SRI PRASHANT MAHARISHI, AM आयकर अऩीऱ सुं./ ITA No. 17/Mum/2021 (ननधधायण वर्ा / Assessment Year 2011-12) Dy. Commissioner of Income Tax (Exemption)-2(1), Room No. 519, 5 th Floor, Piramal Chambers, Lalbaug, Lower Parel, Mumbai-400 012 बनाम/ Vs. M/s UTI Institute of Capital Markets (Now known as M/s National Institute Securities Markets) NISM Bhavan, Plot NO. 82, Sector 17, Vashi, Navi Mumbai-400 705 (अऩीऱाथी / Appellant) (प्रत्यथी/ Respondent) स्थायी ऱेखा सुं./PAN No. AAAAN4685M अऩीरधथी की ओय से / Appellant by : None प्रत्मथी की ओय से / Respondent by : Shri Achal Sharma, DR स ु नवधई की तधयीख / Date of hearing: 30.12.2021 घोर्णध की तधयीख / Date of pronouncement : 06.01.2022 आदेश / O R D E R प्रशाुंत महर्षि, ऱेखा सदस्य के द्वारा / PER PRASHANT MAHARISHI, AM: 01. This appeal is filed by the Dy. Commissioner of Income Tax (Exemption) 2(1), Mumbai against the order passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [in short ‘the CIT(A)’] on 19.08.2020, wherein the appeal filed by the assessee against the assessment order passed under section 143(3) of the Income-Tax Act, 1961 (hereafter referred as ‘Act’) dated 19.03.2014 was allowed. Page | 2 ITA No. 17/Mum/2021 M/s UTI Institute of Capital Markets; AY 11-12 02. The only issue raised by the learned Assessing Officer is allowance of carry forward of deficit to the assessee’s trust. 03. The brief facts of the case shows that the assessee is a trust registered under section 12A of the Act and also with the Charity Commissioner, Mumbai. The assessee filed its return of income on 29.09.2011 having a total income of Rs. 3,93,86,346/-. The assessment order was passed under section 143(3) of the Act by the learned Assessing Officer on 19.03.2014 determining the total income of the assessee as nil. The learned Assessing Officer disallowed the deficit carry forward from the earlier years amounting to Rs. 1,50,38,577/- and also current years under deficit of Rs.3,93,86,346/-. The Assessing Officer rejected the claim holding that the provision 11 of the Act does not permit the determination of deposit. 04. Aggrieved by that order assessee preferred the appeal before the learned CIT(A) , who allowed the claim of the assessee following the decision of the Hon’ble Jurisdictional High Court in the case of DIT(Exemption) vs. MIDE in ITA No. 2652 of 2011 dated 20.03.2013, wherein following the decision of CIT vs. Institute of Banking Personnel Selection (2003) 264 ITR 110 (Bom), the claim of the assessee was allowed. The learned CIT(A) also noted that Hon’ble Supreme Court in the case of CIT(E) Vs. Subros Educational Society in Misc. Appeal No. 941 of 2018 in Civil Appeal No.5171 of 2016 has allowed the Page | 3 ITA No. 17/Mum/2021 M/s UTI Institute of Capital Markets; AY 11-12 claim of the assessee. Therefore, he passed an order allowing the deficit of the assessee to be carried forward. The learned Assessing Officer is aggrieved and has preferred this appeal before us. 05. The learned DR ssupported the order of the learned Assessing Officer. 06. Despite notice, none appeared on behalf of the assessee and therefore, the issue is decided on the merits of the case as per information available on record. 07. We have carefully considered the contentions of ld DR and perused the orders of the lower authorities. Vide Para No. 7.3.1 the learned CIT(A) has allowed the deficit to the assessee to be carried forward following the decision of the Hon’ble Jurisdictional High Court. He also supported such decision by the decision of Hon’ble Supreme Court wherein the Special SLP filed by the Revenue was dismissed. The learned CIT(A) has dealt with the whole issue as under:- “7.3.1 It is seen that the issue of allowing or not allowing carry forward of deficits in the case of Trust is covered in favour of the assessee by the order of jurisdictional High Court in the case of DIT (E) vs. MIDC in ITA No. 2652 of 2011 dated 20.03.2013 wherein placing reliance on the decision of CIT vs. Page | 4 ITA No. 17/Mum/2021 M/s UTI Institute of Capital Markets; AY 11-12 Institute of Banking Personnel selection reported in 264 IR 110/131 Taxmann 386 (Bombay) the appeal filed by the department on the issue of carry forward of deficit was dismissed. Further, the issue has also been decided by the Hon’ble Supreme Court in the case of CIT(E) vs. Subros Educational Society in Misc. Appeal No. 941 of 2018 in Civil Appeal No.5171 of 2016 wherein the Misc. Application filed by the department stands dismissed. In view of such facts and circumstances of the case and in view of the decisions of Hon’ble Jurisdictional High Court and the Hon’ble Apex Court, the action of the Assessing Officer in not allowing carry forward of deficit of earlier years (and set off thereof) as also not allowing loss of current year be carried forward for adjustment in subsequent years is not found justifiable. Accordingly, this ground of appeal no.2 of the assessee is also allowed but the Assessing Officer is directed to adopt the correct figures before they are allowed to be carried forward and setoff.” 08. We are also conscious of the facts that with effect from 1-4-2022 explanation (2) is inserted after explanation 1 Page | 5 ITA No. 17/Mum/2021 M/s UTI Institute of Capital Markets; AY 11-12 u/s 10(23C) of the by the Finance Act, 2021, which provides that Explanation 2.—For the purposes of this clause, it is clarified that the calculation of income required to be applied or accumulated during the previous year shall be made without any set off or deduction or allowance of any excess application of any of the year preceding to the previous year; 09. However Notes on clauses to Finance Bill 2021 says that These amendments will take effect from 1st April, 2022 and will, accordingly, apply in relation to the assessment year 2022-2023 and subsequent assessment years. Therfore it does not apply for the impugned assessment year. 010. No infirmity was pointed out by the learned Departmental Representative in the order of the learned Commissioner of Income Tax (Appeals). We also do not find any infirmity in his order and therefore the same is upheld. Solitary ground of appeal of the learned Assessing Officer is dismissed. 011. In the result, the appeal filed by the department is dismissed. Order pronounced in the open court on 06.01.2022 Sd/- Sd/- ( KULDIP SINGH) ( PRASHANT MAHARISHI) (न्मधनमक सदस्म / JUDICIAL MEMBER) (रेखध सदस्म / ACCOUNTANT MEMBER) भ ु ुंफई, ददनधुंक/ Mumbai, Dated: 06.01.2022 Page | 6 ITA No. 17/Mum/2021 M/s UTI Institute of Capital Markets; AY 11-12 स दीऩ सरकार, व.ननजी सधिव / Sudip Sarkar, Sr.PS आदेश की प्रनतलऱर्ऩ अग्रेर्षत/Copy of the Order forwarded to : 1. अऩीरधथी / The Appellant 2. प्रत्मथी / The Respondent. 3. आमकय आम ु क्त(अऩीर) / The CIT(A) 4. आमकय आम ु क्त / CIT 5. ववबधगीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भ ु ुंफई / DR, ITAT, Mumbai 6. गधर्ा पधईर / Guard file. आदेशान सार/ BY ORDER, सत्मधवऩत प्रनत //True Copy व. ननजी सधिव/ Sr. Private Secretary आयकर अऩीऱीय अधधकरण, भ ु ुंफई / ITAT, Mumbai