The ACIT,Gandhinagar Circle, Gandhinagar V. M/s. Gujarat Safai Kamdar Vikas Nigam, Gandhinagar

ITA 1982/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9298 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA ASSESSING OFFICER
• Assessee Lawyers: A N SHAH
• Section: 143(3)

Judgement Text

I.T.A. NO S . 2067 AND 1982 /AH D/ 20 11 ASSESSMENT YEARS: 200 8 - 09 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND RAJPAL YADAV JM ] I.T.A. NO. 2067 /AHD/ 20 11 ASSESSMENT YEAR: 200 8 - 09 GUJARAT SAFAI KAMDAR VIKAS NIGAM LIMITED . . .APPELLANT BLOCK NO.16, DR. JIVARAJ MEH TA BHAVAN, SECTOR 10, GANDHINAGAR. [PAN: AA BCG 7818 C ] VS. DY. COMMISSIONER OF INCOME TAX ... .. . RESPONDENT GANDHINAGAR CIRCLE, GANDHINAGAR I.T.A. NO. 1982 /AHD/ 20 11 ASSESSMENT YEAR: 200 8 - 09 AASSTT. COMMISSIONER OF INCOME TAX . . .APPELLANT GANDHINAGAR CIRCLE, GANDHINAGAR VS. GUJARAT SAFAI KAMDAR VIKAS NIGAM LIMITED .. . RESPONDENT BLOCK NO.16, DR. JIVARAJ MEHTA BHAVAN, SECTOR 10, GANDHINAGAR. [PAN: AABCG 7818 C] APPEARANCES BY: A.N. SHAH FOR THE ASSESSEE D.P. GUPTA FOR THE ASSESSING OFFICER DATE OF CONCLUDING THE HEARING : DECEMBER 2 2 ND , 2015 DATE OF PRONOUNCING THE ORDER : MARCH 7 TH , 20 1 6 O R D E R PER PRAMOD KUMAR , AM : I.T.A. NO S . 2067 AND 1982 /AH D/ 20 11 ASSESSMENT YEARS: 200 8 - 09 PAGE 2 OF 5 THESE CROSS APPEAL ARE DIRECTED AGAINST THE ORDER DATED 2 ND MAY, 2 011 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR 2008 - 09. 2. GRIEVANCE OF THE ASSESSEE IS THAT THE LEARNED CIT(A) HAS ERRED IN LAW BY HOLDING THA T THE APPELLANT IS NOT ENTITLED TO CLAIM EXEMPTION UNDER SECTION 10(26B) OF THE INCOME TAX ACT, 1961, THOUGH THE APPELLANT HAS BEEN ESTABLISHED FOR PROMOTING THE INTEREST S OF SAFAI KAMDARS WHO ARE INVARIABLY THE MEMBERS OF S CHEDULED C LASS OR BACKWARD CLAS SES . 3. TO ADJUDICATE UPON THIS ISSUE, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. THE ASSESSEE BEFORE US, A COMPANY REGISTERED UNDER SECTION 25 OF THE COMPANIES ACT, WAS SET UP FOR THE UPLIFTMENT OF S AFAI K AMDARS THROUGH VARIOUS SCHEMES IN C OLLABORATION WITH THE GOVERNMENT BODIES AND WITH NATIONAL SAFAI KARMCHARIS FINANCE AND DEVELOPMENT CORPORATION AND ACTING AS CHANNELIZING AGENCY, AND FOR EXAMINING THE PROBLEMS OF SAFAI KAMDA R S AND TRYING TO FIND SOLUTIONS THEREOF. THE ASSESSING OFFICER W AS OF THE VIEW THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION UNDER SECTION 10(26B) OF THE ACT, AS THIS EXEMPTION IS AVAILABLE ONLY FOR THE BODIES ESTABLISHED OR FORMED FOR PROMOTING THE INTEREST S OF THE MEMBERS OF S CHEDULED C ASTES OR SCHEDULED TRIBES OR BACKWARD CLASSES, OR ANY TWO OR ALL OF THEM WHEREAS THE ASSESSEE IS FORMED FOR PROMOTING THE INTERESTS OF SAFAI KAMDARS. THE ASSESSING OFFICER WAS OF THE VIEW THAT AS THE TERM SAFAI KAMDAR DOES NOT REFER TO THE MEMBERS OF S CHEDULED C ASTES OR S CHEDULE D T RIBES OR BACKWARD CLASSES, THE EXEMPTION U/S. 10(26B) IS NOT AVAILABLE TO THE I.T.A. NO S . 2067 AND 1982 /AH D/ 20 11 ASSESSMENT YEARS: 200 8 - 09 PAGE 3 OF 5 ASSESSEE . AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A) BUT WITHOUT ANY SUCCESS. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT O F THE APPLICABLE LEGAL POSITION. 5. WE FIND THAT THE EXPRESSION SAF AI KAMDAR , FOR ALL PRACTICAL PURPOSES, REFERS TO ONE OF TH E WEAKEST CLASS OF MEMBERS OF S CHEDULED C ASTES, S CHEDULED T RIBES OR OTHER BACKWARD CLASSES. IT IS SO FOR THE REASON THAT SAFAI KAMDARS REFERS TO SWEEPERS AND SCAVENGERS, ENGAGED IN CLEANING WORK, WHO INVARIABLY BELONG TO THESE UNDERPRIVILEGED SECTIONS O F SOCIETY. THE PURPOSE OF THIS CORPORATION IS TO IMPLEMENT THE SCHEMES FOR UPLIFTMENT OF THIS SEGMENT OF SOCIETY AND, AS THE CLARIFICATION GIVEN BY THE STATE GOVERNMENT CATEGORICALLY STATES, THE BENEFICIARIES OF THESE SCHEMES ARE RESTRICTED TO ONLY S CHEDU LED CASTES OR S CHEDULED TRIBES . U NDOUBTEDLY, A LITERAL INTERPRETATION OF SAFAI KAMDAR COULD POSSIBLY INCLUDE ALMOST EVERYONE ENGAGED IN CLEANING WORK BUT THAT IS NOT REALLY MATERIAL BECAUSE THIS C ORPORATION IMPLEMENTS G OVERNMENT SCHEME S FOR SAFAI KAMDA RS, AND SUCH G OVERNMENT SCHEMES, ACCORDING TO THE G OVERNMENT, ARE RESTRICTED TO MEMBERS OF S CHEDULED C ASTES AND S CHEDULES T RIBES. THERE CAN THUS BE NO DOUBT THAT THE C ORPORATION IS ESTABLISHED AND FORMED FOR PROMOTING THE INTERESTS OF MEMBERS OF THE S CHE DULED C ASTES OR S CHEDULED T RIBES I N THIS REGARD, WE MAY REFER TO THE CONTENTS OF FOLLOWING CLARIFICATION ISSUED BY THE STATE GOVERNMENT: - CERTIFICATE THIS IS TO CERTIFY THAT ALL THE SAFAI KAMDARS, WHO ARE THE BENEFICIARIES UNDER VARIOUS SCHEMES OF GUJARAT SAFAI KAMDAR VIKAS NIGAM, ARE EITHER THE MEMBERS OF THE SCHEDULED CASTES AND SCHEDULED TRIBES WITHIN THE MEANING ASSIGNED TO THEM IN I.T.A. NO S . 2067 AND 1982 /AH D/ 20 11 ASSESSMENT YEARS: 200 8 - 09 PAGE 4 OF 5 CLAUSES (24) AND (25) OF THE ARTICLE 366 OF THE CONSTITUTION OF INDIA AND COVERED UNDER THE FIRST SCHEDULE AND SECO ND SCHEDULE OF THE SCHEDULED CASTES AND SCHEDULED TRIBES ORDERS (AMENDMENT) ACT, 1976, ENACTED BY THE PARLIAMENT IN EXERCISE OF THE POWERS CONFERRED BY CLAUSE (2) OF ARTICLE 341 AND CLAUSE (2) OF ARTICLE 342 OF THE CONSTITUTION OF INDIA OR THE MEMBERS OF B ACKWARD CLASSES AS NOTIFIED BY THE CENTRAL GOVERNMENT OR THE STATE GOVERNMENT FROM TIME TO TIME. CERTIFICATE IN FURTHERANCE TO THE CERTIFICATE NO: MIS 102008 - 2667 - G DATED 29/12/2008, IT IS FURTHER CERTIFIED THAT GUJARAT SAFAI KAMDAR VIKAS NIGAM HAS BEEN ESTABLISHED E SPECIALLY FOR THE BENEFIT OF SAFAI KAMDARS I.E. SWEEPERS & SCAVENGERS ENGAGED IN UNCLEAN OPERATIONS AND THEIR DEPENDENTS WHO CONSTITUTE WEAKEST SEGMENT OF MEMBERS OF SCHEDULE D CASTES, SCHEDULED TRIBES AND MEMBERS OF OTHER BACKWARD C LASSES (OBC). THE PURPOSE OF MENTION OF THE WORD SAFAI KAMDAR IN THE OBJECT CLAUSE OF THE MEMORANDUM OF ASSOCIATION OF THE NIGAM IS SPECIFICALLY TO LIMIT THE BENEFITS TO THIS WEAKEST CLASS ONLY AS AGAINST ENTIRE SCHEDULE CASTES, SCHEDULE TRIBES AND OBC COMMUNITIES. 6. IT IS ALSO IMPORTANT TO NOTE THAT ALL THAT SECTION 10(26B) OF THE ACT REQUIRES IS THAT THE C ORPORATION SHOULD BE SET UP FOR PROMOTING THE INTERESTS OF S CHEDULED C AS T ES AND S CHEDULES T RIBES ETC. SECTION 10(26B) FOR READY REFERENCE, IS R EPRODUCED BELOW: - 10 (26B) ANY INCOME OF A CORPORATION ESTABLISHED BY A CENTRAL, STATE OR PROVINCIAL ACT, OR OF ANY OTHER BODY, INSTITUTION OR ASSOCIATION (BEING A BODY, INSTITUTION OR ASSOCIATION WHOLLY FINANCED BY GOVERNMENT) WHERE SUCH CORPORATION OR OT HER BODY OR INSTITUTION OR A SSOCIATION HAS BEEN ESTABLISHED OR FORMED FOR PROMOTING THE INTERESTS OF THE [ MEMBERS OF THE SCHEDULED CASTES OR THE SCHEDULED TRIBES OR BACKWARD CLASSES OR OF ANY TWO OR ALL OF THEM]. [ EXPLANATION. - FOR THE PURPOSES OF THIS CLAUSE, - (A) SCHEDULED CASTES AND SCHEDULED TRIBES SHALL HAVE THE MEANINGS RESPECTIVELY ASSIGNED TO THEM IN CLAUSES (24) AND (25) OF ARTICLE 366 OF THE CONSTITUTION; (B) BACKWARD CLASSES MEANS SUCH CLASSES OF CITIZENS, OTHER THAN THE SCHEDULED CASTES AND T HE SCHEDULED TRIBES, AS MAY BE NOTIFIED - (I) BY THE CENTRAL GOVERNMENT; OR (II) BY ANY STATE GOVERNMENT, AS THE CASE MAY BE, FROM TIME TO TIME;] I.T.A. NO S . 2067 AND 1982 /AH D/ 20 11 ASSESSMENT YEARS: 200 8 - 09 PAGE 5 OF 5 7. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDERED VIEW, THE ASSESSEE WAS INDEED ELIGIBLE FOR EXEMPTIO N UNDER SECTION 10(26B) OF THE ACT . ON THIS ISSUE GRIEVANCE OF THE ASSESSEE DESERVES TO BE UPHELD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 9. AS THE ASSESSEE IS HELD TO BE ELIGIBLE FOR EXEMPTION UNDER SECTION 10 (26B) OF THE ACT , GRIEVAN CES OF THE A SSESSING OFFICER, WHICH PERTAIN TO RELIEF GRANTED BY THE LD. CIT(A) QUANTUM OF DISALLOWANCES MADE ARE RENDERED INFRUCTUOUS AND WHOLLY ACADEMIC. IT IS NOT AT ALL NECESSARY TO ADJUDICATE ON THAT ASPECT OF THE MATTER, AT THIS STAGE. 10. THE APPE AL FILED BY THE ASSESSING OFFICER IS THUS DISMISSED AS INFRUCTUOUS. 1 1. TO SUM UP, WHILE APPEAL OF THE ASSESSEE IS ALLOWED, THE APPEAL OF THE ASSESSING OFFICER IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY THE 7 TH DAY OF MARCH, 2016. SD/ - SD/ - RAJPAL YADAV PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 7 TH DAY OF MARCH , 2016. COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES , AHMEDABAD