M/s Bulandshahr Development Authority, Bulandshahr V. Addl. CIT, Bulandshahr

ITA 2686/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3064 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 142(1); 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2686/DEL/2016 A.Y. : 2011-12 BULANDSHAHR DEVELOPMENT AUTHORITY, YAMUNAPURAM COMMERCIAL COMPLEX, MG ROAD, BHOOR, BULANDSHAHR 203001 (PAN: AAALB0116G) VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE BULANDSHAHR, INCOME TAX OFFICE, TEACHERS COLONY, BULANDSHAHR 203001 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SH. S.S. RANA, CIT(DR) SH. KAUSHLENDRA TIWARI, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 24/2/2016 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS), GHAZIABAD ON T HE FOLLOWING GROUNDS :- 1. BECAUSE THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND AGAINST THE FACTS OF THE APPEAL. 2 2. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WHOLLY UNJUSTIFIED IN DISMISSING THE APPEAL MERELY ON THE GROUND THAT THE DEPARTMENT HAS FILED A SLP AGAINST THE ORDER OF HON'BLE ALLAHABAD HIGH COURT CONFIRMING THE ORDER OF HON'BLE ITAT GRANTING REGISTRATION U/S 12A OF THE ACT. LD. COMMISSIONER O F INCOME TAX (APPEALS) HAS ALSO IGNORED THE FACT THAT HON'BLE APEX COURT HAS ACCEPTED THE SLP BUT NOT GRANTED ANY STAY AGAINST THE ORDER OF HON'BLE ALLAH ABAD HIGH COURT. 3. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) ERRED BOTH IN LAW AND ON FACTS IN DISMISSING THE AP PEAL OF THE APPELLANT WHEREAS THE MAIN GROUND IN THE APP EAL BEFORE LEARNED CIT (APPEAL) WAS THAT THE ASSESSING OFFICER HAS ASSESSED SURPLUS OF RECEIPTS AND EXPENDITURE ACCOUNTS' MERELY ON THE BASIS OF REJECT ION OF REGISTRATION U/S 12A, BY COMMISSIONER OF INCOME TAX, ALTHOUGH THE ISSUE OF REGISTRATION WAS DECIDED BY HON'BLE ITAT, NEW DELHI IN FAVOUR OF THE APPELLANT AND FURTHER CONFIRMED BY HON'BLE ALLAHABAD HIGH COURT B Y REJECTING APPEAL FILED BY THE DEPARTMENT AGAINST TH E ORDER OF HON'BLE ITAT. NOW THE MATTER OF REGISTRATI ON U/S 12A IS SUB-JUDICE BEFORE HON'BLE SUPREME COURT, AS SLP FILED BY THE DEPARTMENT HAS BEEN ADMITTED BUT T HE 3 STAY AGAINST THE ORDER OF HON'BLE ALLAHABAD HIGH CO URT WAS NOT GRANTED BY THE APEX COURT. 4. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY O F THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARI NG. 2. THE FACTS IN BRIEF ARE THAT ASSESSEE HAS FILED ITS RETURN OF INCOME IN THE STATUS OF AOP (TRUST) SHOWING TAXABLE INCOME AT RS. NIL AFTER CLAIMING EXEMPTION U/S 11 OF THE INCOME TAX ACT, 19 61 (HEREAFTER REFERRED AS THE ACT) TOWARDS EXCESS OF INCOME OVER EXPENDITURE AT RS. 4,77,10,186/-. IN THIS CASE THE RETURN WAS PROC ESSED U/S 143(1) OF I.T. ACT, 1961 ON 14.01.2013 ON RETURNED INCOME. LA TER, THE CASE WAS SELECTED UNDER SCRUTINY THROUGH CASS AND NOTICE U/S 143(2) OF I.T. ACT, 1961 DATED 07.8.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE. ON CHANGE OF INCUMBENT NOTICE U/S. 143(2) DATED 26.6.2 013 WAS ISSUED FIXING THE DATE FOR COMPLIANCE ON 05.7.2013. FURTH ER, NOTICE U/S. 142(1) ALONGWITH DETAILED QUESTIONNAIRE DATED 22.8.2013 WA S ISSUED TO THE ASSESSEE. IN COMPLIANCE TO THESE NOTICES THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FURNISHED THE REQUIRED DETAILS / EXPLANATION. THE BOOKS OF ACCOUNT WERE PRODUCED AN D EXAMINED ON TEST CHECK BASIS. THEREAFTER, THE AO OBSERVED THAT AS TH E ISSUE OF REGISTRATION U/S 12A OF THE ASSESSEE AS ON DATE IS SUB-JUDICE BE FORE THE APPELLATE AUTHORITIES, THEREFORE THE SUBMISSION OF THE ASSESS EE IS NOT ACCEPTABLE. AS ON DATE, THE ASSESSEE HAS NO REGISTRATION U/S 12A O F THE I.T. ACT, 1961. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTI ON U/S 11 OF THE I.T. 4 ACT,. 1961 AND ALL THE SURPLUS INCOME OVER THE EXPE NDITURE ARE TAXABLE UNDER THE NORMAL PROVISIONS OF I.T. ACT, 1961. ACCO RDINGLY, THE AO HELD THAT AS PR THE INCOME & EXPENDITURE A/C ENCLOSED WI TH THE RETURN, THE ASSESSEE HAS SHOWN SURPLUS AT RS. 4,77,10,186/-. AC CORDINGLY, THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 30.9.201 3 PASSED U/S. 143(3) OF THE ACT ON TOTAL INCOME AT RS. 4,77,10,1 86/-. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 24.2.2016 HAS HELD THAT IT IS UNCONTROVERTED FACT THAT AS ON DATE THE ASSESSEE DOES NOT ENJOY R EGISTRATION U/S. 12AA AND SUCH REGISTRATION IS MANDATORY FOR AVAILING EXE MPTION U/S. 11 TO 13 OF THE ACT. THE ASSESSMENT ORDER THEREFORE, DENYING SU CH EXEMPTION IN ABSENCE OF MANDATORY REGISTRATION U/S. 12AA CALLS F OR NO INTERFERENCE. 3. AGGRIEVED WITH THE IMPUGNED ORDER DATED 24.2.20 16 PASSED BY THE LD. CIT(A), GHAZIABAD, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SE NT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NO R ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE M ATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGA IN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPE AL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 5 5. SH. S.S. RANA, LD. CIT (DR) AND SH. KAUSHLENDRA TIWARI, LD. SR.DR. APPEARED FOR THE DEPARTMENT AND RELIED UPON THE ORD ERS PASSED BY THE REVENUE AUTHORITIES. MR. RANA, STATED THAT THE ISSU E INVOLVED IN THE PRESENT APPEAL IS EXACTLY SIMILAR TO THE ISSUE INVO LVED IN THE CASE OF JAMMU DEVELOPMENT AUTHORITY VS. UOI (2014-TIOL-115- SC-IT) WHICH HAS BEEN DECIDED IN FAVOUR OF THE REVENUE BY THE HONBL E SUPREME COURT OF INDIA. THEREFORE, HE REQUESTED THAT FOLLOWING THE A FORESAID PRECEDENT, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. FOR THE SA KE OF CONVENIENCE, HE FILED THE COPY OF THE DECISION OF THE HONBLE SU PREME COURT OF INDIA IN THE CASE OF JAMMU DEVELOPMENT AUTHORITY VS. UOI (20 14-TIOL-115-SC- IT). 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS , ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES AS WELL AS RELEVANT RECORD, WE ARE OF THE CONSIDERED VIEW THAT LD. CIT(A) HAS RIGH TLY DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT AS ON DATE T HE ASSESSEE IS NOT IN POSSESSION OF REGISTRATION U/S. 12AA OF THE ACT, WH ICH IS MANDATORY FOR AVAILING THE EXEMPTION U/S. 11 TO 13 OF THE I.T. AC T, 1961. WE HAVE ALSO PERUSED THE APPEAL FILE AND WE ARE OF THE VIEW THAT ASSESSE HAS NOT FILED ANY CERTIFICATE OF REGISTRATION GRANTED U/S. 12AA O F THE I.T. ACT, 1961, WHICH IS MANDATORY FOR AVAILING THE EXEMPTION U/S. 11 TO 13 OF THE ACT, BEFORE THE AO AS WELL AS LD. CIT(A) AND EVEN BEFORE THE TRIBUNAL. THEREFORE, IN THE ABSENCE OF THE SAME, WE ARE UNABL E TO ACCEPT THE REQUEST OF THE ASSESSEE FOR GRANT OF EXEMPTION U/S. 11 TO 13 OF THE I.T. ACT. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCE S OF THE PRESENT CASE, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED F OR IN THE WELL REASONED ORDER PASSED BY THE LD. CIT(A), BECAUSE THE ISSUE I NVOLVED IN THE PRESENT APPEAL IS EXACTLY SIMILAR TO THE ISSUE INVOLVED IN THE CASE OF JAMMU DEVELOPMENT AUTHORITY VS. UOI (2014-TIOL-115-SC-IT) IN WHICH 6 REGISTRATION U/S. 12A OF THE I.T. ACT WAS CANCELLE D BY THE LD. CIT(A) AND ORDER OF THE LD. CIT(A) WAS UPHELD BY THE ITAT AND HONBLE JAMMU & KASHMIR HIGH COURT AND FINALLY AN SLP FILED BY THE JAMMU DEVELOPMENT AUTHORITY HAS ALSO BEEN DISMISSED BY THE HONBLE SU PREME COURT OF INDIA. THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE SUPR EME COURT OF INDIA DECISION IN THE CASE OF JAMMU DEVELOPMENT AUTHORITY VS. UOI (2014- TIOL-115-SC-IT), WE UPHOLD THE IMPUGNED ORDER PASSE D BY THE LD. CIT(A) AND REJECT THE GROUNDS RAISED BY THE ASSESSE E BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 04/12/2017. SD/- SD/- (L.P. SAHU) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 04/12/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES