Diocese of Shimoga , Shimoga V. Assistant Commissioner of Income Tax Circle-1 , Shimoga

ITA 171/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0644 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-12-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M NARASIMHA RAJU J
• Assessee Lawyers: EDMOND DSOUZA
• Keywords: Depreciation; Set aside
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI B.R BASKARAN , ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.171/BANG/2019 ASSESSMENT YEAR : 2012-13 DIOCESE OF SHIMOGA, BISHOPS HOUSE, MALLIGEMANE, MALIGENAHALLI, SAGAR ROAD, SHIMOGA. PAN AAATD 1219 N VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1, SHIVAMOGGA. APPELLANT RESPONDENT APPELLANT BY : SHRI EDMOND D SOUZA, C.A RESPONDENT BY : SHRI M NARASIMHA RAJU, J.C.I.T (DR) DATE OF HEARING : 05.12.2019 DATE OF PRONOUNCEMENT : 19.12.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 27-11-2018 PASSED BY LD CIT(A), DAVANGERE AND IT RE LATES TO ASST. YEAR 2012-13. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ACTION OF THE AO IN REJECTING THE EX EMPTION CLAIMED BY THE ASSESSEE U/S 11 OF THE ACT, IN DISALLOWING D EPRECIATION AND BROUGHT FORWARD DEFICIT. ITA NO.171 /BANG/2019 PAGE 2 OF 5 3. THE LD AR SUBMITTED THAT THE ASSESSEE WAS GRANTE D REGISTRATION U/S 12A OF THE ACT W.E.F 21/7/1989, WH ICH WAS OBTAINED ON THE BASIS OF TRUST DEED DATED 14/11/88. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED TH AT THE ASSESSEE HAS EXECUTED A NEW TRUST DEED ON 22/12/2005 AND THE ASSESSEE HAS NOT GOT APPROVAL FOR THE SAME FROM LD CIT(A). THE AO TOOK THE VIEW THAT THE ASSESSEE SHOULD HAVE GOT THE PRIOR AP PROVAL OF THE CIT WITH REGARD TO CHANGES MADE IN THE TRUST DEED AND S INCE THE SAID APPROVAL WAS NOT OBTAINED THE ASSESSEE, THE ASSESSE E CANNOT BE ALLOWED EXEMPTION U/S 11 OF THE ACT AS REGISTRATION GRANTED U/S 12A ON THE BASIS OF EARLIER TRUST DEED SHALL NO LON GER EXIST. ACCORDINGLY HE REJECTED THE CLAIM FOR EXEMPTION U/S 11 OF THE ACT. THE AO ALSO DISALLOWED THE CLAIM FOR DEPRECIATION A ND ALSO DISALLOWED DEDUCTION OF BROUGHT FORWARD LOSSES. TH E LD CIT(A) CONFIRMED THE ORDER PASSED BY AO AND HENCE THE ASSE SSEE HAS FILED THIS APPEAL. 4. THE LD AR FOR THE ASSESSEE SUBMITTED THAT THE CH ANGES MADE IN THE TRUST DEED HAS SINCE BEEN APPROVED BY LD CIT (E) AND THE SAME HAS COMMUNICATED TO THE ASSESSEE ON 20/4/2015 BY THE DCIT, HEADQUARTERS. HE SUBMITTED THAT THE ASSESSEE HAS RECEIVED THE APPROVAL SUBSEQUENT TO THE COMPLETION OF THE AS SESSMENT AND HENCE IT COULD NOT BE GIVEN TO THE AO. HE FURTHER SUBMITTED THAT THE LD CIT(A) HAS NOT TAKEN NOTE OF THIS APPROVAL. HE FURTHER SUBMITTED THAT THE ISSUES RELATING TO DISALLOWANCE OF DEPRECIATION AND BROUGHT FORWARD DEFICIT ARE COVERED BY THE DECI SIONS RENDERED BY THE TRIBUNAL AND HIGH COURTS. ACCORDINGLY HE PRA YED THAT ALL THE ITA NO.171 /BANG/2019 PAGE 3 OF 5 MATTERS MAY BE RESTORED TO THE FILE OF THE AO FOR E XAMINING THEM AFRESH. 5. THE LD DR ALSO AGREED TO THE PRAYER PUT FORTH BY LD AR. 6. WE NOTICE THAT THE ASSESSEE HAS SUBMITTED THAT T HE AMENDMENT MADE TO THE TRUST DEED HAS BEEN APPROVED BY THE LD CIT(A) SUBSEQUENT TO THE COMPLETION OF THE ASSESSME NT AND HENCE THE AO DID NOT HAVE THE BENEFIT OF CONSIDERING THE SAME. WE NOTICE THAT THE REJECTION OF EXEMPTION U/S 11 WAS MADE ONL Y FOR THE REASON THAT THE AMENDMENTS MADE TO THE TRUST DEED WERE NOT APPROVED BY LD CIT(E). ACCORDINGLY, WE ARE OF THE VIEW THAT TH E ISSUE RELATING TO THE ELIGIBILITY OF THE ASSESSEE TO CLAIM EXEMPTION U/S 11 OF THE ACT REQUIRES FRESH EXAMINATION IN VIEW OF THE CHANGED C IRCUMSTANCES STATED ABOVE. FURTHER, THE ASSESSEE SUBMITTED THAT THE ISSUES RELATING TO DISALLOWANCE OF DEPRECIATION AND BROUGH T FORWARD DEFICIT AMOUNT ARE COVERED BY THE DECISION RENDERED BY THE TRIBUNALS/HIGH COURTS, WHICH HAVE NOT BEEN CONSIDERED BY THE AO. ACCORDINGLY WE ARE OF THE VIEW THAT ALL THE ISSUES MAY BE RESTORED TO THE FILE OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE AO FOR EX AMINING THEM AFRESH. AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEI NG HEARD, THE AO MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LA W. ITA NO.171 /BANG/2019 PAGE 4 OF 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DECEMBER, 2019. SD/ - (BEENA PILLAI) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 19 TH DECEMBER, 2019. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE. ITA NO.171 /BANG/2019 PAGE 5 OF 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. .. 14. DICTATION NOTE ENCLOSED