Jamshedpur Public School, Jamshepur V. ACIT, Jamshepur

ITA 306/RAN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0315 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHOUDHARY ORAON
• Assessee Lawyers: S K PODDAR
• Section: 143(3); 133A; 234B; 148; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI CIRCUIT BENCH, RANCHI BEFORE SHRI N.S. SAINI, HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 306/RAN/2014 (ASST. YEAR : 2006-07) JAMSHEDPUR PUBLIC SCHOOL, PANCHVATI ROAD, NEW BARIDIH, JAMSHEDPUR. VS. ACIT, CIRCLE-2, JAMSHEDPUR. PAN NO. AADFJ 0298 E (APPELLANT) (RESPONDENT) ITA NO. 286/RAN/2014 (ASST. YEAR : 2006-07) ACIT, CIRCLE-2, JAMSHEDPUR. VS. JAMSHEDPUR PUBLIC SCHOOL, PANCHVATI ROAD, NEW BARIDIH, JAMSHEDPUR. PAN NO. AADFJ 0298 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. PODDAR ADV. DEPARTMENT BY : SHRI CHOUDHARY ORAON - DR DATE OF HEARING : 05/11/2015. DATE OF PRONOUNCEMENT : 05/11/2015. O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THESE ARE THE APPEALS FILED BY THE ASSESSEE AND TH E REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS), JAMSHEDPUR, DATED 29/08/2014. 2. IN ASSESSEES APPEAL, THE SOLE GROUND OF APPEAL I S THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN PASSING THE ORDER UNDER SECTION 2 ITA NOS. 306 & 286/RAN/2014 143(3)/147 OF THE ACT ON THE GROUND THAT REGISTRATI ON UNDER SECTION 12A/12AA WAS NOT GRANTED TO THE ASSESSEE. 3 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE O RDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. 4. BRIEF FACTS OF THE CASE ARE THAT DURING THE SURVEY UNDER SECTION 133A CONDUCTED ON 25/03/2011, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE WAS CLAIMED EXEMPTION WITHOUT TAKING REGIS TRATION UNDER SECTION 12A/12AA OF THE ACT. THE ASSESSING OFFICER FOUND FROM THE AUDIT REPORT THAT THERE WAS AN EXCESS OF INCOME OVE R EXPENDITURE AMOUNTING TO RS. 16,05,294/- FOR THE YEAR UNDER APP EAL. THEREFORE, HE ISSUED NOTICE UNDER SECTION 148 OF THE ACT AND MADE THE ASSESSMENT UNDER SECTION 147/143(3) OF THE ACT ON 12/12/2013 D ENYING THE EXEMPTION CLAIMED BY THE ASSESSEE UNDER SECTION 11 OF THE ACT AND BRINGING TO TAX THE EXCESS INCOME AMOUNTING TO RS. 16,05,294/-. 5. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSI ONER OF INCOME TAX (APPEALS) OBSERVED THAT THE ASSESSING OFFICER H AS TAXED THE SIMILAR AMOUNTS FOLLOWING SIMILAR REASONS AS IN ORDER UNDER SECTION 143(3)/147 FOR THE ASSESSMENT YEAR 2004-05 & 2005-06. THE ADD ITIONS, SO MADE, WERE CONFIRMED BY A COMMON ORDER DATED 29/11/2013 I N APPEAL NO. 310/JSR/2011-12 AND APPEAL NO. 379/JSR/2012-13 FOR THE ASSESSMENT YEARS 2004-05 & 2005-06. HE NOTED THAT IN THE APPE LLATE PROCEEDINGS, THE ASSESSEE HAS MADE SIMILAR ARGUMENTS AS IN ASSES SMENT YEARS 2004-05 & 2005-06 EXCEPT FOR INFORMING THAT CCIT, R ANCHI VIDE ORDER DATED 24/03/2014 HAD GRANTED EXEMPTION UNDER SECTIO N 10(23)(C)(VI) TO THE SCHOOL FOR ASSESSMENT YEAR 2013-14 AND ONWAR DS SUBJECT TO CONDITIONS MENTIONED THEREIN. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE GRANTING OF EXEMPTION F ROM ASSESSMENT YEAR 2013-14 AND THEREAFTER WILL NOT MAKE ANY MATER IAL CHANGE FOR THIS 3 ITA NOS. 306 & 286/RAN/2014 ASSESSMENT YEAR AS NO EXEMPTION UNDER SECTION 12A/1 2AA OR UNDER SECTION 10(23)(C)(VI) WAS AVAILABLE TO THE ASSESSEE FOR THE YEAR UNDER APPEAL. HE, THEREFORE, CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 6 . AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, IN THE PAPER BOOK, HAS FILED BEFORE US A COPY OF LETTER DATED 07/02/2012 S UBMITTED TO THE COMMISSIONER OF INCOME TAX FOR REGISTRATION UNDER S ECTION 10(23)(C)(VI) AND CORRESPONDING LETTERS THEREON AT PAGE NOS. 4 TO 12 OF THE PAPER BOOK FILED BY HIM. HE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX HAS NOT DISPOSED OFF THIS APPLICATION FO R REGISTRATION UNDER SECTION 10(23)(C)(VI) OF THE ACT TILL DATE. AT PAG E NOS. 13 TO 16 OF THE PAPER BOOK, THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE HAS FILED COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2003-0 4 DATED 30/01/2006 UNDER SECTION 143(3) OF THE ACT AND SUBM ITTED THAT THE ASSESSING OFFICER HAS ALLOWED EXEMPTION OF INCOME F ROM TAX BY OBSERVING THAT THE ASSESSEE HAS ALREADY MADE AN APP LICATION BEFORE THE PRESCRIBED AUTHORITY BEING THE CHIEF COMMISSIONER O F INCOME-TAX, RANCHI IN PRESCRIBED FORM NO. 56D WHICH IS YET TO B E ACTED UPON BY THE CCIT, RANCHI AS ON THE DATE OF PASSING THIS ORDER. ACCORDINGLY, ON THE BASIS OF PAST ACTIVITIES OF THE SCHOOL AND CONSIDER ING THE FACTS THAT THE SCHOOL IS EXISTING SOLELY AS AN EDUCATIONAL INSTITU TION RENDERING EDUCATIONAL SERVICES IN THE NATURE OF ACADEMIC CLAS SES WITHOUT ANY OTHER MOTIVE OF PECUNIARY PROFIT, IT IS ASSUMED THAT THE EXEMPTION UNDER SECTION 10(23)(C)(VI) WILL CONTINUE FOR THE IMPUGNE D ASSESSMENT YEAR AS WELL AS THE ORDER SHALL GET BARRED BY LIMITATION ON 31/03/2006. HENCE, HE SUBMITTED THAT IN THE YEAR UNDER APPEAL, THE ASS ESSING OFFICER WAS NOT JUSTIFIED IN BRINGING THE EXCESS OF INCOME OVER EXPENDITURE TO TAX ON THE GROUND THAT THE ASSESSEE DOES NOT POSSESS REGIS TRATION UNDER SECTION 10(23)(C)(VI) OF THE ACT. 7 . DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER O F THE ASSESSING OFFICER. 4 ITA NOS. 306 & 286/RAN/2014 8 . WE FIND THAT IT IS AN UNDISPUTED FACT THAT THE AS SESSEE HAS FILED AN APPLICATION BEFORE THE COMMISSIONER OF INCOME TAX, JAMSHEDPUR DATED 07/02/2012 FOR GRANTING REGISTRATION UNDER SECTION 10(23)(C)(VI) OF THE ACT. FURTHER, WE OBSERVE THAT COMMISSIONER OF INCO ME TAX HAS NOT EITHER GRANTED REGISTRATION ON THE SAID APPLICATION OF THE ASSESSEE OR REJECTED THE REGISTRATION TO THE ASSESSEE. THE AUTH ORIZED REPRESENTATIVE OF THE ASSESSEE CLAIMED THAT THE SAME IS PENDING BE FORE THE COMMISSIONER OF INCOME TAX. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MA TTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO REDO THE ASSESSMENT AFTER COMMISSIONER OF INCOME TAX OR PROPER AUTHORIT Y TAKES ITS DECISION ON THE APPLICATION OF THE ASSESSEE FILED UNDER SECT ION 10(23)(C)(VI) ON 07/01/2002 WHICH HAS ALSO BEEN ACKNOWLEDGED BY THE ITO (TECH.) VIDE ITS LETTER DATED 07/02/2002. WE DO SO. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE APPEAL OF THE REVENUE, THE SOLE GROUND OF AP PEAL TAKEN IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) WAS N OT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO CHARGE INTEREST UNDER SECTION 234B OF THE ACT ON THE RETURNED INCOME AS AGAINST THE ASSES SED INCOME. 10 . WE FIND THAT IN THE GROUND OF APPEAL, THE REVENU E ITSELF HAS STATED THAT THE COMMISSIONER OF INCOME TAX (APPEALS ) WAS NOT RIGHT IN INTERPRETING THE SEC. 234 IN THE LIGHT OF THE DECIS ION OF JHARKHAND HIGH COURT IN THE CASE OF AJAY KUMAR VERMA VS. ITO [2013 (1) TMI 140]. FROM THE ABOVE GROUND OF APPEAL, WE FIND THAT THE C OMMISSIONER OF INCOME TAX (APPEALS) HAS FOLLOWED THE DECISION OF T HE JURISDICTIONAL HIGH COURT WHILE DIRECTING THE ASSESSING OFFICER TO CHARGE INTEREST UNDER SECTION 234B ON THE RETURNED INCOME AND NOT ON THE ASSESSED INCOME. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF THE COM MISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 5 ITA NOS. 306 & 286/RAN/2014 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO.3 06/RAN/2014 IS ALLOWED FOR STATISTICAL PURPOSE AND THAT OF REVENUE IN ITA NO. 286/RAN/2014 IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON THURSDAY, THE 5 TH DAY OF NOVEMBER, 2015 AT RANCHI. SD/- SD/- (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 05 TH NOVEMBER, 2015. VR/- COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., RANCHI 6 ITA NOS. 306 & 286/RAN/2014 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 05/11/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06/11/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 06/11/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 06/11/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 06/11/2015 SR.PS 6. DATE OF PRONOUNCEMENT 05/11/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 06/11/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER