I.M.C. Society of I.T.I., Patan V. The Dy.CIT, Patan Circle, Patan

ITA 3012/AHD/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6256 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-04-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 27-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: M J SHAH
• Section: 12A; 12AA; 147; 148; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 3012/AHD/2015 (ASSESSMENT YEAR: 2010-11) I.M.C. SOCIETY OF I.T.I. BINA COMPLEX, SIDHPUR, PATAN. V/S DY. COMMISSIONER OF INCOME TAX, PATAN CIRCLE, PATAN (APPELLANT) (RESPONDENT) PAN: AAAATI8374D APPELLANT BY : SHRI M. J. SHAH, AR RESPONDENT BY : SHRI RAHUL KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -04-201 7 DATE OF PRONOUNCEMENT : 13 -04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A), GANDHINAGAR, AHMEDABAD DATED 24. 07.2015 PERTAINING TO A.Y. 2010-11. ITA NO. 3012 /AHD/2015 . A.Y. 2010-11 2 2. THE SHORT GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN REFUSING BENEFIT VESTED TO THE ASSESSEE U/S. 11 AND SECTION 10(23C)(IIIAB) OF THE ACT. 3. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND C HALLENGING THE VALIDITY OF THE REASSESSMENT MADE U/S. 147 OF THE ACT. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE A SSESSEE FILED ITS RETURN OF INCOME ON 31.03.2012 DECLARING INCOME AT RS. NIL. T HE SAME WAS PROCESSED AND ACCEPTED U/S. 143(1) OF THE ACT. 5. ON GOING THROUGH THE RECORDS, THE A.O. NOTICED THAT THE ASSESSEE TRUST WAS GRANTED REGISTRATION U/S. 12AA OF THE ACT WITH EFFE CT FROM A.Y. 2012-13. TAKING A LEAF OUT OF THIS, THE A.O. WAS OF THE OPIN ION THAT THE ASSESSEE HAS UNLAWFULLY CLAIMED DEDUCTION U/S. 11 & 12 OF THE AC T. THE NOTICE U/S. 148 WAS ACCORDINGLY ISSUED AND SERVED UPON THE ASSESSEE . THE A.O. COMPLETED THE RE-ASSESSMENT PROCEEDINGS BY DECLINING THE CLAI M OF EXEMPTION AND ASSESSED THE INCOME AT RS. 6,42,075/-. 6. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE SECOND PROVISO TO SECTION 12A(2) OF THE ACT SPECIFI CALLY PROVIDES A BAR ON THE ASSESSING OFFICER NOT TO TAKE ANY ACTION U/S. 1 47 ONLY FOR NON REGISTRATION FOR ANY ASSESSMENT YEAR PRECEDING THE ASSESSMENT YEAR AFTER ITA NO. 3012 /AHD/2015 . A.Y. 2010-11 3 THE AMENDMENT BROUGHT IN THE SECTION BY THE FINANCE ACT, 2007 WITH EFFECT FROM 01.06.2007. 8. PER CONTRA, THE LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. SECTION 12A CLAUSE (2) READS AS UNDER:- WHERE AN APPLICATION HAS BEEN MADE ON OR AFTER THE FIRST DAY OF JUNE, 2007, THE PROVISION OF SECTIONS 11 & 12 SHALL APPLY IN RELATION TO THE INCOME OF SUCH TRUST OR INSTITUTION FROM THE AS SESSMENT YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH S UCH APPLICATION IS MADE. 10. AND THE SECOND PROVISO READS AS UNDER:- PROVIDED FURTHER THAT NO ACTION U/S. 147 SHALL BE TAKEN BY THE A.O. IN CASE OF SUCH TRUST OR INSTITUTION FOR ANY ASSESSMEN T YEAR PRECEDING THE AFORESAID ASSESSMENT YEAR ONLY FOR NON REGISTRATION OF SUCH TRUST OR INSTITUTION FOR THE SAID ASSESSMENT YEAR. 11. WE FIND THAT THE ASSESSMENT WAS RE-OPENED ONLY ON T HE GROUND THAT NO REGISTRATION WAS GRANTED IN EARLIER ASSESSMENT YEAR . IN THE LIGHT OF SECOND PROVISO TO SECTION 12A(2) OF THE ACT MENTIONED HERE INABOVE, WE QUASH THE ASSESSMENT NOTICE MADE U/S. 148 OF THE ACT THEREBY QUASHING THE ASSESSMENT ORDER MADE U/S. 143 OF THE ACT. ITA NO. 3012 /AHD/2015 . A.Y. 2010-11 4 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 - 04- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 13 /04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD