Dy.C.I.T., Circle-3, Etah V. Narauani Devi Shikshan Sansthan, Hathras

ITA 220/AGR/2013

• Counselvise Citation: 22020314 RSA 2013
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WASEEM ARSHAD
• Assessee Lawyers: SHRI
• Section: 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.220/AGRA/2013 ASSESSMENT YEAR: 2009-10 DY. COMMISSIONER OF INCOME TAX (A.O.), VS. NARA YANI DEVI SHIKSHAN CIRCLE-3, ETAH. SANSTHAN, MATHURA ROAD, SADABAD, HATHRAS. (PAN AAEHN 9882 R). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH, ADVOCATE DATE OF HEARING : 25.02.2014 DATE OF PRONOUNCEMENT : 28.02.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 13.03.2013 PASSED BY THE LD. CIT(A), GHAZIABAD IN T HE MATTER OF ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT, 1961, FOR THE AS SESSMENT YEAR 2009-10. 2. IN THE FIRST GROUND OF APPEAL, THE A.O. HAS RAIS ED THE FOLLOWING GRIEVANCE :- THAT THE LD. CIT(A) ERRED IN TREATING THE ASSESSEE AS CHARITABLE EDUCATIONAL INSTITUTE AND ALLOWING EXEMP TION U/S 10(23)(C) OF THE IT ACT,1961 EVEN WHEN A NUMBER OF OTHER MISC ELLANEOUS OBJECTS ARE ALSO INCLUDED IN ITS OBJECTS CLAUSE. ITA NO.220 /AGRA/2013 A.Y. 2009-10 2 3. EVEN AS LD. DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE STAND OF THE A.O. AS EMBEDDED IN THE GROUNDS OF APPEAL AS WE LL TO THE EFFECT THAT WHEN A GENERAL OBJECT IS INCLUDED IN THE OBJECTS CLAUSE, T HE ASSESSEE CANNOT BE SAID TO EXIST SOLELY FOR EDUCATIONAL PURPOSE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY AGREE D THAT THE ISSUE IN APPEAL IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH IN ITA NO.193/AGRA/2013 IN THE CASE OF ITO VS. HARDAYAL CH ARITABLE & EDUCATIONAL TRUST WHEREIN, THIS VERY BENCH OF THE TRIBUNAL HAS INTER ALIA OBSERVED AS UNDER:- 5. LEARNED COUNSEL DOES NOT DISPUTE THE FACTUAL EL EMENTS EMBEDDED IN THE GRIEVANCES RAISED BY THE ASSESSING OFFICER. HE DOES FAIRLY ACCEPT THAT THERE ARE CERTAIN, THOUGH SOMEWHAT GENERALISED , OBJECTS WHICH GO BEYOND THE EDUCATIONAL ACTIVITIES BUT HE POINTS OUT THAT NONE OF THESE OBJECTS HAVE ACTUALLY BEEN IMPLEMENTED. AS SUCH, AC CORDING TO THE LEARNED COUNSEL, THESE NON EDUCATIONAL OBJECTS HAVE BEEN RATHER DORMANT, NEVER IMPLEMENTED AND NOTHING MORE THAN PL AIN RITUALISTIC AND GENERAL OBJECTS. ON THIS BACKDROP OF UNDISPUTED FACTS, HE INVITES OUR ATTENTION TO THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NEERAJ JANHITKARI GRAMIN SEWA SANSTHAN VS C CIT [ (2013) 36 TAXMANN.COM 105 (ALLAHABAD)] WHEREIN IT IS, INTER A LIA, HELD THAT WHERE THE SOCIETY IS PURSUING ONLY EDUCATIONAL OBJECTS AN D NO OTHER ACTIVITY IS CARRIED OUT, APPLICATION FOR GRANT OF APPROVAL UNDE R SECTION 10 (23 C)(VI) CANNOT BE REJECTED ON THE GROUND THAT ITS AI MS AND OBJECTS CONTAIN SEVERAL OTHER OBJECTS APART FROM EDUCATIONA L OBJECTS. WHEN IT WAS SO POINTED OUT TO THE LEARNED DEPARTMENTAL REPR ESENTATIVE, HE DID NOT HAVE MUCH TO SAY EXCEPT TO PLAY A RATHER BLAND RELIANCE ON THE STAND OF THE ASSESSING OFFICER AND THE GROUND OF APPEAL I TSELF. 6. THE PLEA OF THE LEARNED COUNSEL IS INDEED WELL T AKEN. ONCE HONBLE JURISDICTIONAL HIGH COURT EXPRESSES ITS VIEW TO THE EFFECT THAT ONLY ACTUAL ACTIVITIES OF THE SOCIETY ARE TO BE TAKEN INTO ACCO UNT FOR ITS ELIGIBILITY TO STATUTORY EXEMPTIONS UNDER THE SCHEME OF THE ACT, A ND NOT THE OBJECTS AS SET OUT IN ITS TRUST DEED, THE VERY FOUNDATION OF R EVENUES GRIEVANCES CEASES TO BE SUSTAINABLE IN LAW. THE DORMANT OBJECT S OF THE SOCIETY, I.E. ITA NO.220 /AGRA/2013 A.Y. 2009-10 3 THE OBJECTS WHICH HAVE NOT BEEN PURSUED IN REALITY, CANNOT BE REASON ENOUGH TO DECLINE AN EXEMPTION TO WHICH THE ASSESSE E IS OTHERWISE ENTITLED. IN THIS VIEW OF THE MATTER, WE REJECT THE GRIEVANCES RAISED BY THE ASSESSING OFFICER. 5. WE SEE NO REASON TO DEVIATE FROM THE VIEW SO TAK EN IN THE MATTER BY US. RESPECTFULLY FOLLOWING THE SAME, WE APPROVE AND AFF IRM THE CONCLUSION ARRIVED AT BY THE LD. CIT(A) AND DECLINE TO INTERFERE IN THE M ATTER. 6. GROUND NO.1 IS DISMISSED. 7. IN THE SECOND GROUND OF APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE :- THE LD. CIT(A) ERRED IN TREATING THE AMOUNT OF RS .38,34,000/- RECEIVED AS CONTRIBUTION FROM THE MEMBERS ACCEPTING THEIR CAPACITY AND GENUINENESS AND AS MEANT FOR CORPUS, THOUGH THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF TRANSACTION AND ALSO TH E CAPACITY OF THE MEMBERS. 8. WE HAVE NOTICED THAT SINCE THE ADDITIONAL EVIDEN CES WERE ACCEPTED BY THE LD. CIT(A), HE HAD DULY FORWARDED ALL SUCH EVIDENCES FO R A REMAND REPORT FROM THE A.O. IT IS ALSO A MATTER OF RECORD THAT VARIOUS RE MINDERS WERE ALSO ISSUED TO THE A.O. FOR SENDING HIS COMMENTS ON THE ADDITIONAL EVI DENCES BUT THE A.O. DID NOT AVAIL OF THE SAID OPPORTUNITY. UNDOUBTEDLY, THE AS SESSMENT WAS FRAMED UNDER SECTION 144 AND, THEREFORE, THIS MATERIAL WAS NOT B EFORE THE A.O. BUT THE LD. CIT(A) WAS QUITE FAIR AND REASONABLE IN GIVING AN OPPORTUN ITY TO THE A.O. TO BE HEARD IN ITA NO.220 /AGRA/2013 A.Y. 2009-10 4 RESPECT OF, INTER ALIA, EVIDENCES IN SUPPORT OF GEN UINENESS OF THE DONATION AND CAPACITY OF DONORS AND YET THE A.O. DID NOT AVAIL A NY OF THESE OPPORTUNITIES. IN ANY EVENT, NO SPECIFIC INFIRMITIES HAVE BEEN POINTED OU T IN THE EVIDENCES SO ACCEPTED BY THE LD. CIT(A). IN VIEW OF THESE DISCUSSIONS AND ALSO BEARING IN MIND THE ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE A.O.S GRIEVANCE IS DEVOID OF ANY LEGALLY SUSTAINABLE MERIT ON THE FACTS OF THE C ASE. THE CONCLUSION ARRIVED AT BY THE LD. CIT(A) IS WELL REASONED AND AFTER GIVING A FAIR OPPORTUNITY WHICH REMAINED UN-AVAILED BY THE A.O. WE, THEREFORE, REJECT A.O. S GRIEVANCE ON THIS ISSUE ALSO AND DECLINE TO INTERFERE IN THE MATTER. 9. GROUND NO.2 IS ALSO THUS DISMISSED. 10. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH FEBRUARY, 2014) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28 TH FEBRUARY, 2014 PBN/* COPY OF THE ORDER FORWARDED TO :- APPELLANT/RESPONDENT/CIT (APPEALS) CONCERNED/CIT CO NCERNED/ D.R., ITAT, AGRA BENCH, AGRA/ GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY