The ITO, (Exemptions) , Ward-1, Ahmedabad V. Earth Foundation, Ahmedabad

ITA 2017/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1917 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: ANIL N SHAH
• Keywords: Audit objection; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 2017/AHD/2015 / ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER (EXEMPTION) WARD-1, AHMEDABAD VS. EARTH FOUNDATION, 39, CHANDRALAYA SOCIETY, NR. SARDAR PATEL STADIUM, NAVJIVAN, AHMEDABAD PAN : AAATE 1169 J [ / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI NARENDRA SINGH, SR. DR. ASSESSEE BY : SHRI ANIL N. SHAH, AR !'# / DATE OF HEARING : 10/03/2016 / DATE OF PRONOUNCEMENT: 01/04/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-9, AHMEDAB AD, DATED 24.04.2015 FOR ASSESSMENT YEAR 2011-12, ON THE FOLL OWING GROUNDS:- I. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO GRANT EXEMPTION U/S 11(1)(A) TO THE ASSESSEE AS CLAIMED BY IT. II. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS IN HOLDING THAT THE ACTIVITIES OF THE ASSESSEE-TRUST ARE IN THE NATURE OF CHARITABLE ACTIVITIES AS DEFINED U/S 2(15) OF THE I.T. ACT, 1961. ITA NO. 2017/AHD/2015 ITO (EXEMPTIONS) VS. EARTH FOUNDATION FOR AY: 2011-12 2 III. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IV. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) MAY BE SET ASIDE AND THAT OF TH E ASSESSING OFFICER BE RESTORED. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE CONTENDED THAT AS PER THE CENTRAL BOARD OF DIRECT TAXES CIRCU LAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10 TH DECEMBER 2015, THE REVISED LIMIT FOR PREFERRING REVENUE'S APPEALS BEFO RE ITAT IS RS.10,00,000/-. THE LEARNED COUNSEL FOR THE ASSESS EE POINTED OUT THAT THE TAX EFFECT IN THE PRESENT REVENUE'S APPEAL IS B ELOW THE PRESCRIBED LIMIT OF RS.10,00,000/-; THEREFORE, THE REVENUE'S APPEAL MAY BE DISMISSED AS THE TAX EFFECT BEING BELOW THE PRESCRI BED LIMIT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10 TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS.10,00,000/ -, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURT HER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTION S WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUA SHED BY IMPUGNED ITA NO. 2017/AHD/2015 ITO (EXEMPTIONS) VS. EARTH FOUNDATION FOR AY: 2011-12 3 ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS , ETC. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10,00,000/-. IT IS FURTHER OBSERV ED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE ASSESSIN G OFFICER, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF TH IS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 1 ST APRIL, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED 01/04/2016 BIJU T., PS !&''()(*' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # ( ) / THE CIT(A) 5. &'( ! , ! , / DR, ITAT, AHMEDABAD 6. (- ./ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD