Deputy Commissioner of Income Tax, , Vijayawada V. VDM Charitable Trrust , Eluru

ITA 277/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7959 (ITAT-VISAKHAPATNAM)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-06-2018
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 277 /VIZ/2018 ( / ASSESSMENT YEAR: 20 09 - 1 0 ) DY .COMMISSIONER OF INCOME TAX (EXEMPTIONS) VIJAYAWADA VS. M/S V.D.M.CHARITABLE TRUST BISHOPS HOUSE XAVIER NAGAR ELURU [PAN : AAATV5072F] ( / APPELLANT) ( / RESPONDENT) CO NO. 14/VIZ/2018 (ARISING OUT OF I .T.A.NO. 277 /VIZ/2018) ( / ASSESSMENT YEAR: 2009 - 10) M/S V.D.M.CHARITABLE TRUST BISHOPS HOUSE XAVIER NAGAR ELURU [PAN : AAATV5072F] DY .COMMISSIONER OF INCOME TAX (EXEMPTIONS) VIJAYAWADA ( / APPELLANT) ( / RESPONDENT) /REVENUE BY : S MT SUMAN MALIK, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 15 . 04. 201 9 / DATE OF PRONOUNCEMENT : 23 .04. 201 9 2 I.T.A. NO . 277 /VIZ/2018 AND CO NO.1 4 /VIZ/201 8 M/S VDM CHARITABLE TRUST, ELURU / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: DELAY : THE REVENUE HAS FILED THE APPEAL WITH THE DELAY OF 9 DAYS. THE AO FILED CONDONATION PETITION REQUESTING FOR CONDONING THE DELAY, STATING THAT DUE TO TRANSFERS OF THE OFFICERS AND STAFF IN THE CHARGE, THE DUE DATE FOR FILING APPEAL HAS MISSED FROM THE ATTENTION OF THE AO AND THE APPEAL COULD NOT BE FILED IN TIME AN D THERE WAS NO INTENTIONAL DELAY. AFTER HEARING BOTH THE PARTIES, THE DELAY IN FILING THE APPEAL IS CONDONED. 2. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 2, GUNTUR, VIDE APPEAL NO.343/2016 - 17 DATED 08.03.2018. CROSS OBJECTIONS ARE FILED BY THE ASSESSEE IN SUPPORT OF THE ORDER OF THE ORDER OF THE LD.CIT(A) FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10 . 3 . IN THIS CASE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.09.2009 DECLARING NIL INCOME. THE ASSESSMENT WAS ORIGINALLY COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) BY AN ORDER DATED 14.12.2009, ACCEPTING THE RETURN OF INCOME FILED BY T HE ASSESSEE. SUBSEQUENTLY, THE CIT HAS CALLED FOR THE RECORDS AND TAKEN UP THE CASE FOR REVISION U/S 263 AND 3 I.T.A. NO . 277 /VIZ/2018 AND CO NO.1 4 /VIZ/201 8 M/S VDM CHARITABLE TRUST, ELURU HELD THAT THE ASSESSMENT ORDER PASSED U/S 143(3) DATED 14.12.2009 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE BY AN ORDER DATED 21.02.2012 AND ACCORDINGLY SET ASIDE THE ORDER WITH A DIRECTION TO REDO THE ASSESSMENT AFTER GIVING OPPORTUNITY TO THE ASSESSEE. ONE OF THE REASONS FOR HOLDING THE ASSESSMENT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WA S INSPECTION CHARG ES OF RS.90,53,902/ - INCURRED BY THE ASSESSEE AND CLAIMED AS ALLOWABLE EXPENDITURE. THE LD.CIT WAS OF THE VIEW THAT THE AO HAS NOT PROPERLY VERIFIED THE NATURE OF EXPENSES AND DIRECTED THE AO TO MAKE FURTHER ENQUIRIES AND EXAMINE WHETHER THE EXPENDITURE WA S INCURRED FOR CHARITABLE PURPOSES OR FOR MAKING GRATUITOUS PAYMENTS IN VIOLATION OF SECTION 13 OF THE ACT. 4. AGAINST THE ORDER U/S 263, THE ASSESSEE FILED APPEAL BEFORE ITAT AND THE ITAT, VISAKHAPATNAM BENCH IN ITS ORDER NO.195/VIZ/2012 DATED 07.10.201 6 QUASHED THE ORDER PASSED U/S 263 AND RESTORED THE ASSESSMENT ORDER PASSED U/S 143(3) ORIGINALLY. MEANWHILE, THE AO HAS GIVEN EFFECT TO THE ORDER OF THE 263 AND PASSED THE CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 263 OF THE ACT BY AN ORDER DATED 31.03.2013. THE REVENUE AUDIT HAS TAKEN UP THE ORDER PASSED U/S 143(3) R.W.S. 263 DATED 31.03.2013 AND RAISED AN 4 I.T.A. NO . 277 /VIZ/2018 AND CO NO.1 4 /VIZ/201 8 M/S VDM CHARITABLE TRUST, ELURU OBJECTION STATING THAT WHILE GIVING EFFECT TO THE ORDER PASSED U/S 263, THE AO COMMITTED MISTAKE IN COMPUTATION OF INCOME AND VIEWED THAT THE DISALLOWANCE OF INSPECTION CHARGES OF RS. 90,53,902/ - NEEDS TO BE BROUGHT TO TAX INSTEAD OF ALLOWING EXEMPTION U/S 11 OF THE ACT. ON THE BASIS OF AUDIT OBJECTION MADE IN CONSEQUENTIAL ORDER PASSED U/S 143 R.W.S. 263, THE AO REOPENED THE ASSESSMENT U/S 147 AND ACCORDIN GLY PASSED ORDER U/S 143(3) R.W.S. 147 OF THE ACT BY AN ORDER DATED 14.12.2016 AND RAISED THE TAX DEMAND OF RS. 53,99,474/ - . 5. AGAINST THE ASSESSMENT ORDER PASSED ON 14.12.2016, THE ASSESSEE WENT ON APPEAL BEFORE THE LD.CIT(A) - 2, GUNTUR AND THE LD.CIT(A) HELD THAT, SINCE, THE ITAT HAS QUASHED THE ORDER U/S 263 VIDE ITS ORDER 195/VIZ/2012 DATED 07.10.2016, THUS THE AO HAS NO JURISDICTION TO PASS THE ORDER U/S 143(3) DATED 14.12.2016. ACCORDINGLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. AGAINST THE ORDER O F THE LD.CIT(A), THE REVENUE HAS FILED APPEAL BEFORE THIS TRIBUNAL. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE LD.CIT HAS PASSED AN ORDER U/S 263 SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S 143 (3) DATED 14.12.2009. THE SAID 5 I.T.A. NO . 277 /VIZ/2018 AND CO NO.1 4 /VIZ/201 8 M/S VDM CHARITABLE TRUST, ELURU ORDER U/S 263 WAS QUASHED BY THE ITAT IN ITS ORDER VIDE I.T.A. NO.195/VIZ/2012 DATED 07.10.2016. THEREFORE, THE ORDER PASSED U/S 143(3) R.W.S. 263 DATED 31/03/2013 ALSO STANDS CANCELLED AND THERE IS NO VALID ORDER IN EXISTE NCE. SINCE THE ORDER U/S 143(3) BECOMES INFRUCTUOUS, THERE IS NO CASE FOR SHORT COMPUTATION OF INCOME AND CONSEQUENTLY NO CASE FOR REOPENING THE ASSESSMENT HOLDING THAT THERE WAS ESCAPEMENT OF INCOME. HENCE, THE ORDER U/S 143(3) R.W.S. 147 BECOMES INFRUC TUOUS. THEREFORE, WE HOLD THAT THE LD.CIT(A) HAS RIGHTLY HELD THAT THE AO HAS NO JURISDICTION TO PASS ORDER U/S 143(3) DATED 14.12.2016. ACCORDINGLY, WE DECLINE TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. CROSS OB JECTION NO.14/VIZ/2018 8. DELAY : THE ASSESSEE HAS FILED THE CROSS OBJECTIONS WITH A DELAY OF 47 DAYS. NO CONDONATION PETITION WAS FILED FOR CONDONING THE DELAY, HENCE THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED IN LIMINE. 9. IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 6 I.T.A. NO . 277 /VIZ/2018 AND CO NO.1 4 /VIZ/201 8 M/S VDM CHARITABLE TRUST, ELURU ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL, 2019. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 2 3 .04.2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1 . / THE REVENUE DY .COMMISSIONER OF INCOME TAX (EXEMPTIONS), VIJAYAWADA 2 . / THE ASSESSEE - M/S V.D.M.CHARITABLE TRUST , BISHOPS HOUSE, XAVIER NAGAR, ELURU 3. THE COMMISSIONER OF INCOME TAX (EXEMPTIONS) , HYDERABAD 4. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 2 , GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM