Assistant oint Commissioner of Income-tax, V. Bharati Vidyapeeth, Pune

ITA 188/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9170 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Benefit of exemption; Cancellation of registration
• Section: 12; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 188/PUN/2015 / ASSESSMENT YEAR : 2011-12 ACIT (EXEMPTION) CIRCLE , PUNE . / APPELLANT V/S BHARATI VIDYAPEETH, BHARATI VIDYAPEETH BHAVAN, L.B.S. ROAD, PUNE 411 030 PAN : AAATB1836D . / RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK & SHRI MAHAVIR JA IN REVENUE BY : SHRI RAJEEV KUMAR, CIT / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A)-I, PUNE DATED 30-09-2014 FOR THE ASSESSMENT YEAR 2011-12. 2. IN THIS APPEAL, REVENUE RAISED 7 GROUNDS. GROUN D NO.1 RELATES TO THE CORE ISSUE WITH REGARD TO CORRECTNESS IN ALLOWING T HE CLAIM OF EXEMPTION U/S.11 AND 12 OF THE I.T. ACT. REST OF GROUNDS 2 TO 7 ARE EITHER CONSEQUENTIAL OR ACADEMIC. 3. THE CORE GROUND NO.1 IS EXTRACTED AS UNDER : THE LD.CIT(A) GROSSLY ERRED IN ALLOWING THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO EXEMPTION UNDER SECTIONS 11 AND 12 OF THE INCOME-TAX ACT, 1961 INSTEAD OF CONFIRMING THE ASSESSMENT. / DATE OF HEARING :24.07.2017 / DATE OF PRONOUNCEMENT: 26.07.2017 2 ITA NO.188/PUN/2015 4. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSES SEE IS A TRUST RUNNING VARIOUS EDUCATIONAL INSTITUTIONS IN VARIOUS PARTS O F THE STATE OF MAHARASHTRA. ASSESSEE FILED THE ORIGINAL RETURN OF INCOME ON 25- 10-2012 DECLARING TOTAL INCOME NIL. ASSESSEE CLAIMED EXEMPTION U/S.11 AND 12 OF THE I.T. ACT. GIVING THE BACKGROUND FACTS OF THE CASE, LD. COUNSEL FOR THE A SSESSEE MENTIONED THAT, IN THE ASSESSMENT, THE AO DENIED THE EXEMPTION U/S.11 AND 12 TO THE ASSESSEE WHEN THERE WAS AN ORDER OF THE CIT CENTRAL, PUNE RE JECTING THE REGISTRATION U/S.12A OF THE ACT. AO MADE THE ASSESSMENT DETERMI NING THE TOTAL INCOME OF RS.27.70 CRORES (ROUNDED OFF). CONTENT OF PARA 5 N ARRATES THE DISCUSSION RELATING TO CANCELLATION OF REGISTRATION U/S.12A OF THE ACT AND REVERSAL OF THE SAME BY THE TRIBUNAL VIDE ITS ORDER DATED 19-09-2008. IN THIS YEAR, AO CONTINUED TO DENY THE EXEMPTION OF INCOME FROM TAX PENDING THE APPEAL OF THE REVENUE BEFORE HONBLE HIGH COURT AGAINST THE ORDER OF THE TRIBUNAL ON THE ISSUE OF CANCELLATION OF REGISTRATION. HOWEVER, THE CIT(A) CONSIDERED THE O RDER OF THE TRIBUNAL AND TREATED THE ASSESSEE ELIGIBLE FOR EXEMPTION U/S.11 OF THE ACT. FURTHER, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO T HE ORDERS OF THE TRIBUNAL PASSED SUBSEQUENTLY FOR THE ASSESSMENT YEARS 2007-0 8, 2008-09 AND 2009-10 HIGHLIGHTING THE FACT OF GRANTING EXEMPTION ULTIMAT ELY TO THE ASSESSEE IN VARIOUS YEARS. CONTENTS OF PARA 5 TO 5.1 OF THE TRIBUNALS ORDER VIDE ITA NO.777/PUN/2013 ORDER DATED 31-07-2014 RELATING TO ASSESSMENT YEAR 2009-10 SUGGEST THE REQUIREMENT OF GRANTING EXEMPTION TO TH E INCOME ADDED BY THE AO. THE TRIBUNAL, CONSIDERING THE EARLIER ORDERS OF THE TRIBUNAL VIDE ITA NO.537/PUN/2012 DATED 21-03-2014 FOR ASSESSMENT YEA R 2007-08 AND ITA NO. 1592/PUN/2012 DATED 27-03-2014, HELD THAT THE ASSES SEE IS ENTITLED FOR BENEFIT OF EXEMPTION AS CLAIMED U/S.11 AND 12 OF THE ACT. 5. LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HEAVILY RELIED ON THE ORDER OF THE AO. 3 ITA NO.188/PUN/2015 6. AFTER HEARING BOTH THE SIDES, WE PERUSED THE ORD ERS OF THE REVENUE AND THE ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE O N THIS ISSUE RELATING TO ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10. WE ALSO PERUSED THE CONTENTS OF THE ORDER OF CIT(A) IN PARA 4.3. RELEV ANT LINES ARE EXTRACTED AS UNDER : 4.3 . . . . . . . . . . IT IS ON RECORD THAT THE O RDER OF THE LD.CIT(A), PUNE, CANCELLING THE REGISTRATION OF THE APPELLANT TRUST HAD BEEN SET-ASIDE BY THE HONBLE ITAT, PUNE THEREBY RESTORING THE REGISTRATI ON U/S.12AA ON THE APPELLANT WHICH, IN FACT, EVEN THE ASSESSING OFFICER HAS ACKN OWLEDGED IN THE ASSESSMENT ORDER. THUS, TECHNICALLY SPEAKING, AS ON DATE, THE APPELLANT FULFILS THE PRIMARY CONDITION LAID DOWN IN SEC.12A TO CLAIM THE BENEFIT U/S.11 & 12. APART FROM MERELY RELYING ON THE DEREGISTRATION OF THE TRUST U/S.12AA WHICH IS NOW A THING OF THE PAST, THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY VIOLATION UNDER SEC.13(1)(C) OR 13(1)(D) OR ANY OTHER INFRINGEMENT WHICH WOULD DISENTITLE THE APPELLANT TO CLAIM THE BENEFIT OF EXEMPTION U/S.11 & 12 DESPITE HAVING VALID REGISTRATION U/S.12AA. IN SUCH A SITUATION, IT WOUL D BE JUDICIAL IMPROPRIETY ON THE PART OF THE ASSESSING OFFICER TO TREAT THE APPELLAN T AS AN AOP FOR THE PURPOSE OF ASSESSING ITS INCOME BY STILL RELYING ON THE ORDER OF THE CIT(C), CANCELLING THE REGISTRATION. IN FACT, SIMILAR VIEW HAS BEEN TAKEN BY MY LD . PREDECESSOR IN THE APPELLANT'S OWN CASE FOR THE PRECEDING YEARS WHILE DEALING WITH IDENTICAL SITUATION AND THE SAME WAS UPHELD BY ITAT PUNE VIDE ITS ORDER DATED 21 . 03.2014 PASSED IN THE CASE OF THE APPELLANT FOR THE A.Y. 2008-09 BY DISMISSING THE APPEAL FILED BY THE REVENUE. IN VIEW OF THE DECISION OF THE ITAT PUNE IN THE APPELLANT'S OWN CASE FOR THE A.Y. 2008-09 AND IN LINE WITH THE DECISION OF MY LD. PREDECESSORS FOR THE EARLIER YEARS, IT IS HELD THAT THERE WAS NO JUSTIFICATION WHATSOEVER FOR THE ASSESSING OFFICER TO TREAT THE APPELLANT AS NOT HAV ING REGISTRATION U/S.12AA AND ASSESS IT IN THE STATUS, OF AN AOP BY DENYING THE B ENEFIT OF EXEMPTION U/S.11 & 12 WITHOUT BRINGING OUT ANY CONTRAVENTION WITHIN TH E MEANING OF SEC.13. THE ASSESSING OFFICER IS, THEREFORE, DIRECTED TO GRANT THE BENEFIT OF EXEMPTION U/S.11 & 12 TO THE APPELLANT. THE RELEVANT GROUNDS OF AP PEAL RAISED ON THIS ISSUE, ACCORDINGLY STAND ALLOWED. 7. THE ABOVE REFERRED ORDERS OF THE TRIBUNAL IN THE ASSESSEES OWN CASE ARE CONSISTENT IN GRANTING EXEMPTION. AS SUCH, LD. DEP ARTMENTAL REPRESENTATIVE HAS NOT BROUGHT ANYTHING CONTRARY TO THE ABOVE LEGAL PO SITION. THE ABOVE EXTRACT BY CIT(A) INDICATES THAT THE EXEMPTION WAS GRANTED REL YING ON THE ORDER OF THE TRIBUNAL ONLY. THEREFORE, WE FIND THE CONCLUSIONS DRAWN BY THE CIT(A) ARE FAIR AND REASONABLE. LD. DEPARTMENTAL REPRESENTATIVE CO ULD NOT CONTROVERT THE FINDINGS OF THE CIT(A). HENCE, THE ISSUE RAISED IN GROUND NO.1 IS REQUIRED TO BE DISMISSED AND AGAINST THE REVENUE. ALL OTHER GROUN DS ARE DISMISSED AS ACADEMIC OR CONSEQUENTIAL. 4 ITA NO.188/PUN/2015 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF JULY, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 26 TH JULY, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) - I, PUNE 4. TH E CIT - I, PUNE 5 . DR, ITAT, A BENCH PUNE; 6 . / GUARD FILE.