ITO, Bhiwani V. Adarsh Shiksha Samiti, Haryana

ITA 2824/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52457 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-08-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 01-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: R P BASIA
• Section: 143(3); 148

Judgement Text

ITA NO. 2824/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2824/DEL/2011 A.Y. : 2000-01 INCOME TAX OFFICER, WARD - 1, SCO NO. 222, HUDA COMPLEX, BHIWANI VS. ADARSH SHIKSHA SAMITI, CIRCULAR ROAD, BHIWANI (PAN/GIR NO. : AABTA0020D) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. R.P. B ASIA, CA DEPARTMENT BY : DR. B.R.R. KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 29.3.2 011 PERTAINING TO ASSESSMENT YEAR 2000-01. 2. THE GROUND RAISED READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HO LDING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING EXEMPTION TO THE ASSESSEE SAMITI U/S 10(23C)(IIIAD) OF THE INC OME TAX ACT, 1961 AS NOT IN ORDER WITHOUT APPRECIATING THAT THE SAMITI IS NO WHERE DIRECTLY CONNECTED WITH EDUCATION AL ACTIVITIES AND IS ONLY TAKING CARE OF EXPENDITURE, ITA NO. 2824/DEL/2011 2 MAINTENANCE AND MANAGEMENT OF THE PROPERTIES OF THE SOCIETY AND FURTHER ITS CREATION ON THE PRETEXT OF IMPARTING EDUCATION WITHOUT CARRYING ON ANY ACTIVITY OF CHARI TABLE NATURE APPEARS TO BE A COLOURFUL DEVICE TO DIVERT T HE UNACCOUNTED FUNDS ACQUIRED FROM PROPERTY AND DONATI ON WHICH ARE LIABLE TO BE TAXED. 3. IN THIS CASE ASSESSING OFFICER PASSED ASSESSMENT ORDER DATED 12.8.2011 U/S. 143(3) READ WITH SECTION 148 OF THE IT ACT DETERMINING THE TOTAL INCOME OF ` 13,39,752/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION PLACING RELIANCE UPO N THE ITAT ORDER IN ASSESSEES OWN CASE IN EARLIER YEARS. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. BOTH THE COUNSEL FAIRLY AGREED THAT THIS ISSUE I S SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBU NAL IN ASSESSEES OWN CASE. WE FIND THAT THE TRIBUNAL IN ITA NO. 359 0/DEL/10 VIDE ORDER DATED 27.9.2010 HAS HELD AS UNDER:- IN THIS CASE, THE IDENTICAL ISSUE WAS DECIDED AGAI NST THE ASSESSEE BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) IN THE A.Y. 2004-05 AND 2005-06. BEING AGGRIEVED W ITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS)S ORDER THE ASSESSEE PREFERRED APPEALS BEFORE THE TRIBUNAL WHIC H WERE REGISTERED AS ITA NOS. 3785/DEL/2008 AND 3786/DEL/20 08, WHERE THE TRIBUNAL VIDE ORDER DATED 23.4.2008 HAS T AKEN E A ITA NO. 2824/DEL/2011 3 VIEW THAT THE ORDER PASSED BY THE LD. COMMISSIONER O F INCOME TAX (APPEALS) WAS CONTRARY TO THE LAW AND FA CTS IN AS MUCH AS THE ASSESSEE SOCIETY WAS AN EDUCATIONAL INSTITUTION EXISTING SOLELY FOR THE PURPOSE OF EDUC ATION AND NOT FOR THE PURPOSE OF EARNING PROFIT AND THEREFORE , THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION U/S 10(23)(II IAD) OF THE ACT. A COPY OF THIS ORDER OF THE TRIBUNAL HAS BEEN PLACED ON RECORD. THEREAFTER, IN THE A.Y.S. 2002-03 AND 20 06-07, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DEC IDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING T HE DECISION OF THE TRIBUNAL IN A.YS. LD. COMMISSIONER O F INCOME TAX (APPEALS) HAS DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE AFTER FOLLOWING HIS OWN DECISION IN THE A. YS. 2002- 03 AND 2006-07, WHICH WAS BASED UPON THE DECISION OF THE TRIBUNAL IN THE A.Y. 2004-05 AND 2005-06. IT IS TH US CLEAR THAT THIS ISSUE STANDS DECIDED IN FAVOUR OF THE AS SESSEE BY THE DECISION OF THE TRIBUNAL WHICH HAS BEEN FOLLOWE D BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN A.YS. 200 2-03 AND 2006-07 AS WELL AS IN THE PRESENT A.Y. 2003-04. IT IS AN ADMITTED POSITION THAT THE FACTS AND CIRCUMSTANCES O F THE CASE OF THE PRESENT A.Y. ARE IDENTICAL TO THAT OF T HE OTHER ITA NO. 2824/DEL/2011 4 YEARS MENTIONED ABOVE. RESPECTFULLY FOLLOWING THE TRIBUNALS ORDER FOR THE A.Y. 2004-05 AND 2005-06, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS) IN ALLOWING THE ASSESSEES CLAIM OF DEDUCT ION US/ 10(23C)(IIIAD) OF THE ACT. THE GROUND RAISED BY TH E REVENUE IS THUS REJECTED. RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT WE UPHOL D THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THE REVENUES APPEAL STANDS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/8/2011 UPO N CONCLUSION OF HEARING. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 04/8/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A)5. DR, I TAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES