ITO (E) - 1(3), MUMBAI V. FAYZ E HUSAYNI, MUMBAI

ITA 3012/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5394 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: M SUBRAMANIAN LD
• Keywords: Charitable institution; Question of law
• Section: 12A; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.3012/MUM/2018 ( / ASSESSMENT YEAR: 2012-13) ITO (EXEMPTION) - 1(3) R.NO.511, 5 TH FLOOR PIRAMAL CHAMBER, LALBUG MUMBAI- 400 012 / VS. FAYZ E HUSAYNI 167/169, FAYZ E HUSAYNI BUILDING SHIVDAS CHAPSI MARG, DONGRI MUMBAI 400 009 ! ./ ./PAN/GIR NO. AAATF-0013-G ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI M.SUBRAMANIAN LD. AR DEPARTMENT BY : CHAUDHARY ARUN KUMAR SINGH-LD.DR / DATE OF HEARING : 16/05/2019 / DATE OF PRONOUNCEMENT : 16/05/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDER OF LD. COMMISSIO NER OF INCOME-TAX (APPEALS)-1, MUMBAI, [IN SHORT REFERRED TO AS CIT( A)], APPEAL NO. CIT(A)- 1/IT//ITO/E-1(3)/49/2015-16 DATED 23/02/2018 IN ALLOWING THE CARRY FORWARD OF DEFICIT OF RS.236.44 LACS AND DIRECT LD. AO TO A LLOW CARRY FORWARD OF DEFICIT OF EARLIER YEARS. 2 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], AT THE OUTSET, SUBMITTED THAT FIRST APPELLATE AUTHORITY FOLLOWED T HE RECENT DECISION OF HONBLE APEX COURT RENDERED IN CIT VS. RAJASTHAN & GUJARAT CHARITABLE FOUNDATION & OTHERS [161 DTR 33 SC] AND THEREFORE, NO INFIRMITY COULD BE FOUND IN THE SAME SINCE THE ISSUED WAS SQUARELY COVERED IN ASSESSEES FAVOR. THE LD. DR COULD NOT CONTROVERT THE AFORESAI D FACT. 3. FACTS ON RECORD REVEAL THAT THE ASSESSEE TRUST R EGISTERED U/S 12A REFLECTED DEFICIT OF RS.236.44 LACS DURING IMPUGNED AY AND CLAIMED CARRY FORWARD OF THE SAME TO SUBSEQUENT YEARS, INTER-ALIA, BY RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN CIT VS. INSTITUTE OF BANKING PERSONNEL [264 ITR 110]. HOWEVER, THE LD. AO DENIED THE SAME CITING MULTIPLE REASONS AS EXTRACTED AT PARA 6.1 OF THE QUANTUM ASSESSMENT ORDER. ONE OF THE REASONS WAS THAT THE DEPARTMENTS SPECIAL LEAVE PETITION AGAINST THE SAID JUDGMENT WAS PENDING BEFORE HONBL E SUPREME COURT. 4. UPON FURTHER APPEAL, LD. FIRST APPELLATE AUTHORI TY ALLOWED ASSESSEES CLAIM BY FOLLOWING THE AFORE-SAID BINDING JUDICIAL PRONOUNCEMENT. AGGRIEVED THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. AS SUBMITTED BY LD. AR, WE FIND THAT THE ISSUE H AS SQUARELY BEEN SETTLED BY HONBLE SUPREME COURT, IN REVENUES MISC ELLANEOUS APPLICATION TITLED AS CIT (E) VS. SUBROS EDUCATIONAL SOCIETY 166 DTR (SC) 257, WITH THE FOLLOWING OBSERVATIONS: - 1. IN THIS APPLICATION FILED BY THE INCOME TAX DEPA RTMENT IT IS STATED THAT CIVIL APPEAL NO. 5171 OF 2016 ARISES OUT OF SPECIAL LEAVE PETITION (C)... CC NO. 8982/2016 WAS TAGGED WITH OTHER APPEALS AND THE BAT CH MATTERS WERE DECIDED BY THIS COURT ON 13.12.2017. HOWEVER, THE FOLLOWING QUESTION WAS ALSO RAISED IN THE INSTANT APPEAL WHICH WAS NOT THE SUBJECT MATTER OF THOSE APPEALS: 3 (A) WHETHER ANY EXCESS EXPENDITURE INCURRED BY THE TRUST/CHARITABLE INSTITUTION IN EARLIER ASSESSMENT YEAR COULD BE ALLOWED TO BE SET OFF AGAINST INCOME OF SUBSEQUENT YEARS BY INVOKING SECTION 11 OF THE INCO ME TAX ACT, 1961? 2. TO THIS EXTENT, MR. K. RADHAKRISHNAN, LEARNED SE NIOR COUNSEL APPEARING ON BEHALF OF THE APPLICANT/APPELLANT IS CORRECT. THEREFORE, W E HAVE HEARD HIM ON THE AFORESAID QUESTION OF LAW AS WELL BUT DID NOT FIND ANY MERIT THEREIN. 3. THE MISCELLANEOUS APPLICATION IS DISMISSED. RESPECTFULLY FOLLOWING THE SAME, WE CONFIRM THE STA ND IN IMPUGNED ORDER. 6. THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON16/05/2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 16/05/2019 SR.PS:-JAISY VARGHESE ! '! / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &'!% / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. ( )& * , * , / DR, ITAT, MUMBAI 6. ) ,-. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI