M/s mymul Raitha Kalyana Trust , Mysore V. The Commissioner of Income Tax (Exemption) , Bangalore

ITA 2249/BANG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3556 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 23-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MULAFFAR HUSSAIN
• Keywords: Set aside
• Section: 143(3); 12A; 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI B.R BASKARAN , ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.2249/BANG/2018 ASSESSMENT YEAR : 2013-14 M/S MYMUL RAITHA KALYANA TRUST, MALAI MAHADESWARA ROAD, MYSORE DIARY, SIDDARTHA NAGAR, MYSURU-570 011. PAN AACTM 1497 P VS. THE COMMISSIONER OF INCOME-TAX (EXEMPTION), BENGALURU. APPELLANT RESPONDENT REVENUE BY : SHRI SURESH MUTHUKRISHNAN, C.A ASSESSEE BY : SHRI MULAFFAR HUSSAIN, CIT (DR) DATE OF HEARING : 03.03.2020 DATE OF PRONOUNCEMENT : 04.03.2020 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE REVISION ORDER PASSED BY LD CIT(E) U/S 263 OF THE ACT FOR AS ST. YEAR 2013-14. 2. THE ASSESSEE IS A TRUST FORMED FOR THE WELFARE O F MILK FEDERATION EMPLOYEES. IT FILED RETURN OF INCOME FO R THE ASST. YEAR 2013-14 DECLARING INCOME AT NIL AFTER AVAILING EXE MPTION U/S 11 OF THE ACT. IT IS PERTINENT TO NOTE THAT THE ASSESEE TRUST IS REGISTERED U/S 12A OF THE INCOME-TAX ACT. THE AO COMPLETED TH E ASST. U/S 143(3) OF THE ACT ON 29/2/2016. ITA NO.2249 /BANG/2018 PAGE 2 OF 5 3. THE LD CIT, UPON EXAMINATION OF ASST. RECORD, NO TICED THAT THE ASSESSEE HAS DECLARED SURPLUS OF RS.19,25,677/- DU RING THE YEAR UNDER CONSIDERATION AND THE SAME IS LIABLE TO BE TA XED. HE FURTHER NOTICED THAT THE ASSESSEE HAS ALSO NOT SOUGHT ACCUM ULATION OF INCOME AS PER THE PROVISIONS OF SEC. 11(2) OF THE A CT. ACCORDINGLY HE NOTICED THAT THE AO HAS NOT EXAMINED THIS ASPECT AND DID NOT BRING TO TAX THE SURPLUS DECLARED BY THE ASSESSEE. ACCORDINGLY HE HELD THAT THE ASST. ORDER IS ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY HE SET ASIDE THE ASST. ORDER AND DIRECTED THE AO TO PASS FRESH ORDER. THE ASSESSEE IS AGGRIEVED. 4. THE LD AR SUBMITTED THAT THE ASSESSEE DID NOT GE T ENOUGH OPPORTUNITY BEFORE LD CIT TO PRESENT ITS CASE. THE LD AR SUBMITTED THAT THE DIRECTION GIVEN BY THE LD CIT TO THE AO TO PASS THE ASST. ORDER IS NOT JUSTIFIED. BY PLACING RELIANCE ON THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF BAGALKOT TO WN DEVELOPMENT AUTHORITY VS. CIT (2014) TAXMANN.COM 582 (IN ITA NO.1151/BANG/2012 DATED 22/1/2014), THE LD AR SUBMI TTED THAT THE LD CIT SHOULD HAVE DIRECTED THE AO TO AFFORD A N OPPORTUNITY TO THE ASSESSEE TO ACCUMULATE THE INCOME U/S 11(2) OF THE ACT BY FILING FORM NO.10 BEFORE HIM BEFORE COMPLETING THE ASST. ACCORDINGLY HE PRAYED THAT THE DIRECTION ISSUED BY THE LD CIT BE M ODIFIED. ITA NO.2249 /BANG/2018 PAGE 3 OF 5 5. ON THE CONTRARY THE LD DR SUBMITTED THAT THE LD CIT HAS NOTICED THAT THE ASSESSEE HAS DECLARED SURPLUS OF R S.19,25,677/- AND THE AO HAS NOT ASSESSED THE SAME AS INCOME OF T HE ASSESSEE, EVEN THOUGH THE SAME IS LIABLE TO BE TAXED. THE AS SESSEE HAS TO TAKE A CALL AS TO WHETHER TO EXERCISE OPTION TO ACC UMULATE ITS UNUTILIZED INCOME IN TERMS OF SEC. 11(2) OF TO THE ACT, WHICH THE ASSESSEE DID NOT EXERCISE BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HENCE THERE WAS NO REQUIRE MENT FOR THE LD CIT TO GIVE ANY SUCH DIRECTION AS PRAYED BY LD. A.R. HE SUBMITTED THAT THE AO HAS NOT BROUGHT TO TAX THE SU RPLUS DECLARED BY THE ASSESSEE. ACCORDINGLY THE LD DR SUBMITTED T HAT THERE IS TOTAL ABSENCE OF APPLICATION OF MIND ON THE PART OF THE A O AND HENCE THE LD CIT HAS RIGHTLY REVISED THE ASST. ORDER. 6. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE R ECORD. WE HAVE GONE THOUGH THE ORDER PASSED BY THE AO U/S 143 (3) OF THE ACT. WE HAVE NOTICED THAT THE SAID ORDER IS CRYPTIC ORDE R WITHOUT ANY DISCUSSION. IT WAS ALSO NOT SHOWN TO US BY THE ASS ESSEE THAT THE AO DID EXAMINE THE TAXABILITY OR OTHERWISE OF THE S URPLUS SHOWN BY THE ASSESSEE IN ITS INCOME EXPENDITURE ACCOUNT. SI NCE THE AO HAS NOT EXAMINED THE ISSUE AT ALL IN THE ASST. ORDER, T HE IMPUGNED ASST. ORDER SHALL BE RENDERED ERRONEOUS AND PREJUDICIAL T O THE INTEREST OF REVENUE AS PER THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL COMPANY (243 ITR 83)(SC). ACCORDINGLY WE DID NOT FIND ANY INFIRMITY IN THE OR DER PASSED BY LD CIT U/S 263 OF THE ACT. ITA NO.2249 /BANG/2018 PAGE 4 OF 5 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2020. SD/ - (BEENA PILLAI) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 4 TH MARCH, 2020. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE. ITA NO.2249 /BANG/2018 PAGE 5 OF 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. .. 14. DICTATION NOTE ENCLOSED