DCIT, BIKANER V. Shri Shyam Sunder Tantia, SRIGANGANAGAR

ITA 179/JODH/2014

• Counselvise Citation: 17923314 RSA 2014
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 13-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Charitable institution; Documents seized

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 178 & 179 /JODH/2014 (A.Y. 200 5 - 06 & 2006 - 07) DCIT, CENTRAL CIRCLE, VS. SHRI SHYAM SUNDER TANTIA, BIKANER . 2 - A - 6, SUKHARIA NAGAR , SRIGANGANAGAR. PAN NO. AARPT 8591 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH OJHA. DEPARTMENT BY : SHRI O.P. MEENA - D.R. DATE OF HEARING : 24 / 0 7 /201 4 . DATE OF PRONOUNCEMENT : 24 /0 7 /201 4 . O R D E R PER N.K. SAINI, A.M THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 10/12/2013 OF LD. CIT(A) , BIKANER . SINCE THE APPEALS WHICH ARE HAVING SIMILAR FACTS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 FIRST W E WILL DEAL WITH THE APPEAL IN I.T.A. N O. 178/JODH/2014 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: - 2 A . ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) , BIKANER HAS E R RED IN DEL ETING THE ADDITION OF RS. 15,67 ,177/ - AND RS. 89,000/ - BY RELYING O N THE DECISION OF HON'BLE ITAT DATED 31/05/2013 WHICH HAS NOT ATTAINED FINALITY AS THE DEPARTMENT HAS CHALLENGED THE HON'BLE ITAT DECISION BEFORE HON'BL E HIGH COURT OF RAJASTHAN. B . WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), BIKANER IS CORRECT IN LAW IN HOLDING THAT THE INCOME SURRENDERED BY THE ASSESSEE SHYAM SUNDER TANTIA HAS TO BE ASSESSED IN HIS HAND ON SUBSTANTIVE BASIS IGN ORING THE FACT THA T THE INCRIMINATING DOCUMENTS ACTUALLY PERTAINED TO THE OTHER ASSESSEES (RS. 15,67,177/ - PERTAINED TO SHRI MAHESH MAHESHWARY AND OF RS. 89,000/ - PERTAINED TO TANTIA CHARITABLE TRUST) C ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) , BIKANER HAS ERRED IN HOLDING THAT SUBSTANTIVE ADDITION TO BE MADE IN THE HANDS OF THE ASSESSEE, IGNORING THAT SUCH FINDING ENABLES THE TRUST J.R. TANTIA CHARITABLE TRUST TO AVAIL ITSELF OF THE EXEMPTION AVAILABLE TO A CHAR ITABLE TRUST THOUGH THE INCRIMINATING DOCUMENTS SEIZED PROVED THAT IT WAS NOT A CHARITABLE TRUST. D THE APPELLANT CRAVES THE RIGHT TO AMEND, ALTER OR ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 3. ON A PLA I N READING OF THE ABOVE GROUNDS, IT WOULD BE CLEAR THAT THE DEPARTMENT WANTS TO KEEP THE ISSUE ALIVE SINCE THE ORDER OF THE ITAT WHICH HAS BEEN FOLLOWED BY THE LD. CIT(A) WHILE DECIDING THE ISSUES UNDER CONSIDERATION HAD BEEN CHALLENGED BEFORE THE HON'BLE JU RISDICTIONAL HIGH COURT . 4. FACTS RELATING TO TH E S E ISSUE S , IN BRIEF, ARE THAT THE ASSESSEE INCLUDED THE IMPUGNED AMOUNT IN ITS INCOME ON SUBSTANTIVE BASIS WHILE THE ASSESSING OFFICER CONSIDERED THE SAID AMOUNT ON PROTECTIVE BASIS BY 3 OBSERVING THAT THE INCOME OF RS. 15,61,177/ - (WRONGLY MENTIONED AS RS. 15,67,177/ - IN THE GROUNDS OF APPEAL) WHICH PERTAINED TO DR. MAHESH CHOUDHARY AND INCOME OF RS. 89,000/ - PERTAINED TO TANTIA CHARITABLE TRUST . ACCORDINGLY , HE ASSE SSE D THE SAID INCOMES IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ISSUE HAS ALREADY BEEN DECIDED BY THE ITAT IN ASSESSEES OWN CASE FOR THE A.Y. 2007 - 08 TO 2009 - 10 AND HELD THAT THESE INCOMES ARE TO BE ASSESSED ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE. 6 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ITAT HAS HELD THESE INCOMES ARE TO BE ASSESSED IN THE HANDS OF THE ASSESSEE ONLY. HE, THEREFORE, DIRECTED THE ASSESSING OFFICER TO ACCEPT THE AFORESAID INCOMES DECLARED BY THE ASSESSEE ON SUBSTANTIVE BASIS INSTEAD OF PROTECTIVE BASIS. NOW THE DEPARTM ENT IS IN APPEAL. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE ARE OF THE 4 VIEW THAT THE FINDINGS GIVEN BY THE LD. CIT(A) DO NOT REQUIRE ANY INTERFERENCE ON OUR PART BECAUSE THE LD. CIT(A) FOLLOWED THE ORDER DATED 31/05/2013 OF THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE. ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 8 . IN I.T.A.NO. 179/JODH/2014 , THE FACTS ARE IDENTICAL AND EVEN THE RIVAL CONTENTIONS WERE SIMILAR AS WERE IN I.T.A.NO. 178/JODH/2014 (SUPRA) , THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS - MUTANDIS. 9 . IN THE RESULT, BOTH THE APPEAL S OF THE DEPARTMENT ARE DISMIS S ED . ( ORDER PRONOUNCED IN THE COURT ON 24 TH JULY , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24 TH JULY , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR .