The ACIT,GNR Circle, Gandhinagar V. Gujarat Industrial Development Corpn.Ltd., Gandhinagar

ITA 2776/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0423 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 10-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Assessee Lawyers: S N SOPARKAR
• Section: 115JB; 12AA; 12; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.2776/AHD/2012 ( % & '& / ASSESSMENT YEAR : 2003-04) ASST.CIT GANDHINAGAR CIRCLE GANDHINAGAR 382 011 % / VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPN.LTD. BLOCK NO.4, 2 ND FLOOR UDHYOG BHAVAN, SECTOR-11 GANDHINAGAR ./ ./ PAN/GIR NO. : AABCG 8033D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI A.K. PANDEY, SR.D.R. / RESPONDENT BY : SHRI S.N.SOPARKAR / DATE OF HEARING : 13/03/2013 !'# / DATE OF PRONOUNCEMENT : 22/03/13 $% / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M THE ORDER OF LD.CIT(A)-GANDHINAGAR DATED 28/09/2012 PASSED FO R A.Y. 2003-04 AND THE ONLY GROUND ARGUED BEFORE US IS REPRODUCED BELOW:- 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND O N FACTS IN NOT APPLYING THE PROVISIONS OF SECTION 115JB OF IT ACT, THOUGH THE ASSESSEE WAS ASSESSED AS COMPANY. ITA NO.2776/AHD /2012 ASST.CIT VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPN. LTD. ASST.YEAR - 2003-04 - 2 - 2. THE ISSUE AS RAISED FROM THE SIDE OF THE REVENUE ARISING FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE IT ACT DATED 23/03/2006 IS THAT WHETHER THE ASSESSEE IS TO BE SU BJECTED TO TAX UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT, SPECIALLY W HEN THE ASSESSEE IS HAVING EXEMPTED INCOME U/S.11 OF IT ACT BEING ASSES SED UNDER THE STATUS OF A TRUST. THE LD.CIT(A) HAS GIVEN HIS VERDICT I N ASSESSEES FAVOUR IN THE FOLLOWING MANNER:- 6. THE ASSESSEE HOWEVER, IN THE NOTE APPENDE D TO THE RETURN OF INCOME STATED THAT INCOME OF THE ASSESSEE WOULD BE EXEMPTED UNDER ARTICLE 289(1) OF THE CONSTITUTION O F INDIA AND SECTION 111 OF THE IT ACT. SIMILAR NOTE WAS APPEND ED TO SHOW THAT COMPUTATION OF INCOME WAS MADE IN THE NORMAL COURSE UNDER PROTEST. INCOME WAS COMPUTED AS PER BOOK PROFIT U/ S.115JB OF THE IT ACT. THE AO PASSED THE ASSESSMENT ORDER ON 23-0 3-2006 AND TOOK THE STATUS OF THE ASSESSEE AS A COMPANY. IT I S ALSO ADMITTED FACT THAT REGISTRATION U/S.12AA OF THE IT ACT WAS G RANTED TO THE ASSESSEE WITH EFFECT FROM 01-04-2002 MEANING THEREB Y THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER APPEA L SHALL HAVE TO BE COMPUTED ACCORDING TO THE PROVISIONS OF SECTION 11 AND 12 OF THE IT ACT. THE LEARNED CIT(A) DIRECTED THE AO TO RECOMPUTED THE INCOME OF THE ASSESSEE ALLOWING EXEMPTION U/S.11 AN D 12 OF THE IT ACT. THE ADDITION MADE BY THE AO OF RS.31,52,483/- WAS ALSO DELETED BY THE LEARNED CIT(A) BECAUSE THE INCOME WA S FOUND TO BE EXEMPT U/S.11 AND 12 OF THE IT ACT. THE LEARNED CI T(A) HOWEVER, NOTED THAT THE ASSESSMENT OF INCOME U/S.115JB OF TH E IT ACT IS NOT ARISING OUT OF THE ORDER OF ASSESSMENT. THIS FINDI NG OF THE LEARNED CIT(A) IS NOT SUSTAINABLE IN LAW. NOTHING IS PRODU CED BEFORE US TO SHOW IF THE DEPARTMENT HAS PREFERRED ANY APPEAL AGA INST THE IMPUGNED ORDER OF THE LEARNED CIT(A). THEREFORE, T HE ORDER OF THE LEARNED CIT(A) CONFIRMED TO THE EXTENT THAT THE INC OME OF THE ASSESSEE IS EXEMPT U/S.11 AND 12 OF THE IT ACT AND TAKING THE STATUS OF THE ASSESSEE AS A TRUST, THE COMPUTATION OF INCO ME OF THE ASSESSEE BY THE AO IN THE STATUS OF COMPANY, READ W ITH PROVISO TO SECTION 115JB OF THE IT ACT WOULD NOT BE JUSTIFIED. THEREFORE, THERE IS NO QUESTION OF COMPUTING THE INCOME OF THE ASSESSEE WITH ITA NO.2776/AHD /2012 ASST.CIT VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPN. LTD. ASST.YEAR - 2003-04 - 3 - THE AID OF SECTION 115JB OF THE IT ACT. WE ACCORDI NGLY DIRECT THE LEARNED CIT(A) TO FURTHER CLARIFY IN THE ORDER THAT SECTION 115JB OF THE IT ACT WOULD NOT APPLY IN THIS CASE. 3. THIS ISSUE IS NOW SQUARELY COVERED BY SEVERAL DE CISIONS, HOWEVER FOR THE SAKE OF REFERENCE, WE HEREBY CITE AN ORDER OF ITAT C BENCH AHMEDABAD PRONOUNCED IN THE CASE OF GUJARAT INDUST RIAL DEVELOPMENT CORPORATION LTD. VS. ACIT BEARING ITA NO.1171/AHD/2 007 FOR A.Y. 2003-04 (IN ASSESSEES OWN CASE) DATED 16/07/2010, WHEREIN THE FINDING IS AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MA TERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED RETURN OF INCOME ON 30-11-2003 DECLARING TOTAL LOSS OF RS.71,45,69,860/-, THE COMPUTATION WAS MADE AS PER NORMAL BUSINESS COURSE AND THE ISSUE OF REGISTRATION WAS PENDING BEFORE THE AUTHORITIES BELOW. THE ASSESSEE HOWEVER, IN THE NOTE APPENDED TO THE RETURN OF INCOME STATED THAT INCOME OF THE A SSESSEE WOULD BE EXEMPTED UNDER ARTICLE 289 (1) OF THE CONSTITUTION OF INDIA AND SECTION 11 OF THE IT ACT. SIMILAR NOTE WAS APPENDED TO SHOW THAT COMPUTATION OF INCOME WAS MADE IN THE NORMAL COURSE UNDER PROTEST. INCOME WAS COMPUTED AS PER BOOK PROFIT U/S 115 JB OF THE IT ACT. THE AO PASSED THE ASSESSMENT ORDER ON 23-03 -2006 AND TOOK THE STATUS OF THE ASSESSEE AS A COMPANY. IT IS ALSO ADMITTED FACT THAT REGISTRATION U/S 12AA OF THE IT ACT WAS G RANTED TO THE ASSESSEE WITH EFFECT FROM 01-04-2002 MEANING THEREB Y THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER APPEA L SHALL HAVE TO BE COMPUTED ACCORDING TO THE PROVISIONS OF SECTION 11 AND 12 OF THE IT ACT. THE LEARNED CIT(A) DIRECTED THE AO TO C OMPUTE THE INCOME OF THE ASSESSEE ALLOWING EXEMPTION U/S 11 AN D 12 OF THE IT ACT. THE ADDITION MADE BY THE AO OF RS.31,52,483/- WAS ALSO DELETED BY THE LEARNED CIT(A) BECAUSE THE INCOME WA S FOUND TO BE EXEMPT U/S 11 AND 12 OF THE IT ACT. THE LEARNED CIT (A) HOWEVER, NOTED THAT THE ASSESSMENT OF INCOME U/S 115 JB OF T HE IT ACT IS NOT ARISING OUT OF THE ORDER OF THE ASSESSMENT. THIS FI NDING OF THE ITA NO.2776/AHD /2012 ASST.CIT VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPN. LTD. ASST.YEAR - 2003-04 - 4 - LEARNED CIT(A) IS NOT SUSTAINABLE IN LAW. NOTHING I S PRODUCED BEFORE US TO SHOW IF THE DEPARTMENT HAS PREFERRED A NY APPEAL AGAINST THE IMPUGNED ORDER OF THE LEARNED CIT(A). T HEREFORE, THE ORDER OF THE LEARNED CIT(A) IS CONFIRMED TO THE EXT ENT THAT THE INCOME OF THE ASSESSEE IS EXEMPT U/S 11 AND 12 OF T HE IT ACT AND ALL ADDITIONS STAND DELETED. ON THE FACE OF THE ABO VE FINDING OF THE LEARNED CIT(A) EXEMPTING THE INCOME OF THE ASSESSEE U/S 11 AND 12 OF THE IT ACT AND TAKING THE STATUS OF THE ASSESSEE AS A TRUST, THE COMPUTATION OF INCOME OF THE ASSESSEE BY THE AO IN THE STATUS OF COMPANY, READ WITH PROVISO TO SECTION 115 JB OF THE IT ACT WOULD NOT BE JUSTIFIED. THEREFORE, THERE IS NO QUESTION O F COMPUTING THE INCOME OF THE ASSESSEE WITH THE AID OF SECTION 115 JB OF THE IT ACT. WE ACCORDINGLY, DIRECT THE LEARNED CIT(A) TO FURTHE R CLARIFY IN THE ORDER THAT SECTION 115JB OF THE IT ACT WOULD NOT AP PLY IN THIS CASE. 4. SINCE A VIEW HAS ALREADY BEEN TAKEN IN ASSESSEE S OWN CASE IN THE PAST BY THE RESPECTED CO-ORDINATE BENCH, THEREFORE FOLLOWING THE SAME, WE HEREBY AFFIRM THE FINDING OF THE LD.CIT(A) AND D ISMISS THIS GROUND OF THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- ( &..'# ) ( ' ' ( ) $ )* $ ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/ 3 /2013 &.., .*../ T.C. NAIR, SR. PS ITA NO.2776/AHD /2012 ASST.CIT VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPN. LTD. ASST.YEAR - 2003-04 - 5 - ') * +,- .'-' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , -. / / CONCERNED CIT 4. / () / THE CIT(A)-GANDHINAGAR 5. 234 **-., -.#, 5'$,$ / DR, ITAT, AHMEDABAD 6. 467 8 / GUARD FILE. ')% / BY ORDER, 2 * //TRUE COPY// // 0 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 14.3.13 (DICTATION-PAD 3 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.3.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S22/3/13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22/3/13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER