R.B. Gautam Sewa Sansthan, Ghaziabad V. JCIT, Ghaziabad

ITA 1904/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6926 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 26-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SAUBHAGYA AGARWAL; SAURABH GUPTA S
• Keywords: Depreciation
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.1904/DEL/2016 ASSESSMENT YEAR : 2010-11 R.B. GAUTAM SEWA SANSTHAN, C/O M/S N. BHUSHAN & CO., CAS, C-12/114, FIRST FLOOR, DB PLAZA, RDC, RAJ NAGAR, GHAZIABAD. PAN: AAATR5342L VS. JCIT, RANGE-2, GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SAUBHAGYA AGARWAL & SHRI SAURABH GUPTA, ADVOCATES DEPARTMENT BY : SHRI RAJESH KUMAR, SR. DR DATE OF HEARING : 28.09.2016 DATE OF PRONOUNCEMENT : 28.09.2016 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER PASSED BY THE CIT(A) ON 14.1.2016 IN RELATION TO THE ASSES SMENT YEAR 2010-11. 2. FIRST THREE GROUND WERE NOT PRESSED BY THE LD . AR, WHICH HEREBY STAND DISMISSED AS NOT PRESSED. ITA NO.1904/DEL/2016 2 3. THE ONLY OTHER ISSUE CHALLENGED IS ABOUT NOT CON SIDERING THE ASSESSEES CLAIM FOR EXEMPTION U/S 10(23C)(IIIAD) O F THE ACT. 4. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT THE A SSESSEE FILED RETURN DECLARING NIL INCOME. THE AO EXAMINED THE ASSESSE ES CLAIM IN TERMS OF SECTION 11 AND MADE DISALLOWANCE OF DEPRECIATION AM OUNTING TO RS.19,38,802/-. THE ASSESSEE ARGUED BEFORE THE LD. CIT(A) THAT ITS INCOME WAS EXEMPT U/S 10(23C)(IIIAD) AND, HENCE, THERE WAS NO POINT IN APPLYING THE PROVISIONS OF SECTION 11. THE LD. CIT(A) REJEC TED THE ASSESSEES CONTENTION VIDE PARA 5.3 OF HIS ORDER BY HOLDING TH AT THIS ASPECT WAS RAISED FOR THE FIRST TIME BEFORE HIM. THE ASSESSEE IS AGGR IEVED AGAINST THE DECISION OF THE LD. CIT(A) ON THIS POINT. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE ONLY ISSUE IS AS TO WHETHER THE ASSESSEE WAS ELIGIBLE FOR EXEMPTION U/S 10(23C)(IIIAD) OF TH E ACT. WHEREAS THE LD. CIT(A) DID NOT GRANT SUCH EXEMPTION BY FINDING THAT THIS CLAIM WAS MADE FOR THE FIRST TIME DURING THE APPELLATE PROCEEDINGS , THE RETURN OF INCOME CLEARLY MENTIONS THE ASSESSEES CLAIM U/S 10(23C)(I IIAD). A COPY OF SUCH ITA NO.1904/DEL/2016 3 RETURN IS AVAILABLE ON RECORD FROM WHICH IT IS DISC ERNIBLE THAT THE ASSESSEE DID MAKE A CLAIM FOR EXEMPTION U/S 10(23C)(IIIAD). UNDER SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE RAISED THE CLAIM FOR EXEMPTION FOR THE FIRST TIME DURING THE APPELLATE P ROCEEDINGS. SINCE SUCH CLAIM NEEDS TO BE EXAMINED ON MERITS, I AM OF THE C ONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IM PUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT HIM TO EXAMINE THE ASSESSEES CLAIM FOR EXEM PTION U/S 10(23C)(IIIAD) AND CONSEQUENTLY FRAME THE ASSESSMEN T. 6. IN THE RESULT, THE APPEAL IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.20 16. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 28 TH SEPTEMBER, 2016. DK ITA NO.1904/DEL/2016 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.