ACIT, CC-XXIII, Kolkata, Kolkata V. M/s. Guru Nanak Educational Trust, Kolkata

ITA 2211/KOL/2010

• Counselvise Citation: 221123514 RSA 2010
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UJJAL KUMAR
• Assessee Lawyers: S L KOCHAR
• Section: 260A; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : KOLKATA ( ) . . , . .. . . .. . !' !' !' !' , ,, , $ $ $ $ ,) [BEFORE HONBLE SRI B.R. MITTAL, J.M. & HONBLE SRI S.V. MEHROTRA, A.M.] % % % % / I.T.A NOS. 2210 & 2211/KOL/2010 &' &' &' &' () () () () /ASSESSMENT YEARS : 2004-2005 & 2007-2008 ASSISTANT COMMISSIONER OF INCOME TAX, -VS.- M/S. GURU NANAK EDUCATIONAL TRUST, CENTRAL CIRCLE-XXIII, KOLKATA KOLKATA (PAN : A AATG 6799 C) ( *+ *+ *+ *+ /APPELLANT) ( ,-*+ ,-*+ ,-*+ ,-*+ /RESPONDENT) FOR THE ASSESSEE : SHRI S.L. KOCHAR, A.R. FOR THE DEPARTMENT : SHRI UJJAL KUMAR, D.R. . . . . / ORDER PER SHRI B. R. MITTAL, JUDICIAL MEMBER/ . . , : THE DEPARTMENT HAS FILED THESE TWO APPEALS AGAINST ORDERS OF LD. COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-III, KOLKATA DATED 24 .09.2010 RELATING TO ASSESSMENT YEARS 2004- 05 & 2007-08 ON COMMON GROUNDS WHICH ARE AS UNDER : - (1) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A.) HAS ERRED IN DIRECTING THE AO TO GRANT EXEMPTION U/ S. 11 OF THE I.T. ACT TO THE ASSESSEE TRUST WHEN THE ORDER DATED 20.03.2009 OF THE HONBLE ITAT CANCELING THE ORDER PASSED BY THE CIT ON 31.12.2008 UNDER SECTION. 12AA(3) OF THE ACT HAS BEEN APPEALED BEFORE THE HON BLE HIGH COURT UNDER SECTION. 260A OF THE ACT AND IS NOT CONCLUSIV E AT THIS POINT OF TIME. (2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A.) HAS ERRED IN DIRECTING THE AO TO GRANT EXEM PTION UNDER SECTION. 11 OF THE I.T. ACT TO THE ASSESSEE WHEN THE STATUS OF THE ASSESSEE THAT WAS HELD AS AOP FOR THE REASONS AS DISCUSSED IN THE A SSESSMENT ORDER WAS NOT CHALLENGED BY THE ASSESSEE. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND PERUSED THE ORDERS OF AUTHORITIES BELOW. ITA NOS. 2210 & 2211/KOL./2011 2 3. DURING THE COURSE OF HEARING, LD. DEPARTMENTAL R EPRESENTATIVE SUBMITTED THAT LD. CIT(APPEALS) HAS DIRECTED THE ASSESSING OFFICER TO GRANT EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT, GIVEN THAT THE ASSESSEE-TRUSTS REG ISTRATION IS RETAINED BY FOLLOWING THE ORDER OF THE TRIBUNAL THAT THE TRIBUNAL IN ASSESSEES CAS E QUASHED THE ORDER OF LD. CIT, CENTRAL-III, KOLKATA DATED 31.12.2008 VIDE WHICH HE CANCELLED TH E REGISTRATION UNDER SECTION 12AA(3) OF THE ACT, BUT THE DEPARTMENT HAS FILED THE APPEAL BE FORE THE HONBLE HIGH COURT UNDER SECTION 260A OF THE ACT AGAINST THAT ORDER OF TRIBUNAL DATE D 20.03.2009. IN REPLY TO A QUERY, HE SUBMITTED THAT THE APPEAL IS STILL PENDING AND THE ORDER OF THE TRIBUNAL HAS NOT BEEN REVERSED BY THE HONBLE HIGH COURT TILL DATE. THEREFORE, LD. D. R. RELIED ON THE ORDER OF ASSESSING OFFICER. 4. ON THE OTHER HAND, LD. A.R. OF THE ASSESSEE SUBM ITTED THAT LD. CIT(APPEALS) HAS RIGHTLY GIVEN THE DIRECTION TO ASSESSING OFFICER TO GRANT E XEMPTION TO THE ASSESSEE UNDER SECTION 11 OF THE INCOME TAX ACT AS IF THE ASSESSEE-TRUSTS REGIS TRATION IS RETAINED BECAUSE THE TRIBUNAL QUASHED THE ORDER OF LD. CIT DATED 31.12.2008 VIDE WHICH HE CANCELLED THE REGISTRATION OF THE ASSESSEE UNDER SECTION 12AA(3) OF THE ACT. LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER PASSED THE IMPUGNED ORDERS AGAINST WHICH THESE APPE ALS HAVE ARISEN IGNORING THE SAID ORDER OF THE TRIBUNAL DATED 20.03.2009. HE SUBMITTED THAT TI LL THE ORDER OF THE TRIBUNAL IS REVERSED BY THE HONBLE HIGH COURT IN THE APPEAL FILED BY THE D EPARTMENT, THE ORDER OF THE TRIBUNAL IS BINDING AND REFERRED THE DECISION OF THE HONBLE MA DHYA PRADESH HIGH COURT IN THE CASE OF CIT VS.- DARSHAN TALKIES [217 ITR 744], WHEREIN IT WAS HELD AS UNDER :- THE DECISION OF THE HIGH COURT IS BINDING AND THE PENDENCY OF A PETITION FOR SPECIAL LEAVE TO APPEAL TO THE SUPREME COURT FROM SUCH A DECISION CANNOT OBLITERATE ITS IMPACT. IT IS BINDIN G UNTIL IT IS REVERSED OR OVERRULED. HE FURTHER SUBMITTED THAT SIMILAR ISSUE ALSO CAME U P IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07 IN ITA NO. 1689/KOL./2009 IN THE APPEAL FIL ED BY THE DEPARTMENT AND THE TRIBUNAL VIDE ITS ORDER DATED 26.11.2009 DISMISSED THE REVEN UES APPEAL AND TO SUBSTANTIATE HIS SUBMISSION HE FILED A COPY OF THE SAID ORDER OF ITA T. 5. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE EARLIER ORDER OF TRIBUNAL DATED 20.03.2009, WE HOLD THAT THERE IS NO REASON TO INTE RFERE WITH THE ORDERS OF LD. CIT(APPEALS) AS LD. CIT(APPEALS) HAS RIGHTLY DIRECTED THE ASSESSING OFFICER TO GRANT EXEMPTION UNDER SECTION 11 OF THE INCOME TAX ACT AS IF THE ASSESSEE-TRUSTS RE GISTRATION IS RETAINED BECAUSE THE TRIBUNAL ITA NOS. 2210 & 2211/KOL./2011 3 VIDE ITS EARLIER ORDER DATED 20.03.2009 QUASHED THE ORDER OF LD. CIT, CENTRAL-III, KOLKATA DATED 31.12.2008 VIDE WHICH THE LD. CIT CANCELLED THE REG ISTRATION UNDER SECTION 12AA(3) OF THE ACT. HENCE, GROUNDS OF BOTH THE APPEALS ARE REJECTED. 6. IN THE RESULT, BOTH THE APPEALS OF THE DEPARTMEN T ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.05. 2011. SD/- SD/- [S.V. MEHROTRA/ . .. . . .. . !' !' !' !' , ,, , ] [ B.R. MITTAL / . . ] ACCOUNTANT MEMBER/ $ $ $ $ JUDICIAL MEMBER/ DATED : 27 / 05/ 2011 COPY OF THE ORDER FORWARDED TO: 1. M/S. GURU NANAK EDUCATIONAL TRUST, 20, B.T. ROAD, K OLKATA-2, 2 ACIT, CENTRAL CIRCLE-XXIII, 18, RABINDRA SARANI, KO LKATA-1, 3. COMMISSIONER OF INCOME-TAX (APPEALS)- , KO LKATA, 4 CIT, KOLKATA- 5 . DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSIS TANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.