Shri Shiv Venkateshwar Educational and Social Welfare Trust, Meerut V. ACIT, Ghaziabad

ITA 3132/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6453 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Charitable institution
• Section: 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3132/DEL./2017 (ASSESSMENT YEAR : 2012-13) SHRI SHIV VENKATESHWAR EDUCATIONAL AND SOCIAL VS. A CIT, WELFARE TRUST, CIRCLE EXEMPTION, A 217, DEFENCE COLONY, GHAZIABAD. MEERUT. (PAN : AAHTS6246H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJIV SINGHAL, ADVOCATE SHRI RAMIT KAKKAR, ADVOCATE REVENUE BY : SHRI S.S. RANA, CIT DR DATE OF HEARING : 08.01.2019 DATE OF ORDER : 16.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SHRI SHIV VENKATESHWAR EDUCATIONAL A ND SOCIAL WELFARE TRUST (HEREINAFTER REFERRED TO AS T HE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 13.02.2017 PASSED BY LD. CIT (APPEALS), ALIG ARH QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUNDS INTER ALIA T HAT :- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN NOT ALLOWING THE CLAIM OF THE ASSESSEE ON ACCOUNT OF CARRY FORWARD OF LOSS EMANATING FROM SURPLUS APPLIC ATION OF ITA NO.3132/DEL./2017 2 FUNDS. HE HAS FAILED TO OBSERVE JUDICIAL DISCIPLIN E IN TERMS OF BRUSHING ASIDE CASE LAWS OF VARIOUS COURTS CITED BE FORE HIM. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT THE ISSUE OF CARRY FORWARD OF LOSS OF RS.(-) 1,22,19,945/- EMANATING FROM SURPLUS APPLICATION OF FUNDS IS NOT RELEVANT TO THE YEAR UNDER CONSIDERATION SINCE THE ASSESSEE HAS NOT CLAIMED THE LOSSES TO BE SET OFF AGAINST THE IN COME OF THE IMPUGNED YEAR AND ONLY CLAIMED THEM TO BE CARRIED F ORWARD. TO THIS EXTENT, HIS ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE ASSESSEE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE BEING A TRUST RE GISTERED U/S 12AA OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE AC T) HAS BEEN ACCORDED REGISTRATION UNDER SECTION 12A OF THE ACT. IN THE RETURN OF INCOME FILED ON 28.09.2012, ASSESSEE DECLARED NIL I NCOME. AO HAS NOT ALLOWED THE CARRY FORWARD AND SET OFF OF LOSSES AS CLAIMED BY THE ASSESSEE ON THE GROUND THAT THE LOSSES IN QUEST ION ARE NOT THE LOSSES AS REQUIRED U/S 72 OF THE ACT, THE LOSSES BE ING CLAIMED BY THE ASSESSEE ARE ESSENTIAL IN THE NATURE OF EXCESS APPL ICATION OF FUND DURING THE YEAR UNDER ASSESSMENT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ITA NO.3132/DEL./2017 3 ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LD. CIT (A) HAS DECLINED TO DECIDE THE ISSUE IN CONTROVERSY ON THE GROUND THAT SINCE NO SUCH ISSUES ARE INVOLVED IN THE RELEVANT YEAR AS, DURING THE YEAR UNDER ASSESSM ENT, APPLICATION OF INCOME IS MORE THAN THE ACTUAL INCOME AND THIS C ONTROVERSY IS RELEVANT IN THE YEAR WHEN THE ASSESSEE HAS SET OFF OF THE EXCESS AMOUNT APPLIED, THIS ISSUE NEED NOT BE DECIDED. 6. HOWEVER, WE ARE OF THE CONSIDERED VIEW THAT THE CLAIM OF THE ASSESSEE TO CARRY FORWARD LOSSES EMANATING FROM SUR PLUS APPLICATION OF FUND IS REQUIRED TO BE SET OFF AGAIN ST THE INCOME OF THE IMPUGNED YEAR, AS THE IDENTICAL ISSUE HAS BEEN DECIDED BY THE HONBLE APEX COURT IN THE CASE CITED AS CIT (E) VS. SUBROS EDUCATIONAL SOCIETY (2018) 303 CTR 0001 (SC) BY DISMISSING THE MISC. APPLICATION NO.941/2018 IN CIVIL APPEAL N O.5171/2016 FILED BY THE REVENUE BY RETURNING FOLLOWING FINDING S :- 1. IN THIS APPLICATION FILED BY THE INCOME TAX DEPARTMENT IT IS STATED THAT CIVIL APPEAL NO.5171 O F 2016 ARISES OUT OF SPECIAL LEAVE PETITION (C)..CC NO.898 2/2016 WAS TAGGED WITH OTHER APPEALS AND THE BATCH MATTERS WER E DECIDED BY THIS COURT ON 13.12.2017. HOWEVER, THE FOLLOWIN G QUESTION WAS ALSO RAISED IN THE INSTANT APPEAL WHICH WAS NOT THE SUBJECT MATTER OF THOSE APPEALS : (A) WHETHER ANY EXCESS EXPENDITURE INCURRED BY THE TRUST/ CHARITABLE INSTITUTION IN EARLIER ASSESS MENT YEAR COULD BE ALLOWED TO BE SET OFF AGAINST INCOME OF SUBSEQUENT YEARS BY INVOKING SECTION 11 OF THE INCOME TAX ACT, 1961? ITA NO.3132/DEL./2017 4 TO THIS EXTENT, MR. K. RADHAKRISHNAN, LEARNED SENIO R COUNSEL APPEARING ON BEHALF OF THE APPLICANT / APPELLANT IS CORRECT. THEREFORE, WE HAVE HEARD HIM ON THE AFORESAID QUEST ION OF LAW AS WELL BUT DID NOT FIND ANY MERIT THEREIN. THE MI SCELLANEOUS APPLICATION IS DISMISSED. 7. SO, FOLLOWING THE DECISION RENDERED BY THE HONB LE APEX COURT IN CASE CITED AS CIT (E) VS. SUBROS EDUCATIONAL SOCIETY , WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ALL OWED FOR RELIEF SOUGHT FOR AND AO IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD LOSSES EMANATING FROM SURPLUS APPLICA TION OF FUNDS AGAINST THE CURRENT YEAR AND THE REMAINING AMOUNT T O BE SET OFF AGAINST THE NEXT YEARS INCOME. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 16 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), ALIGARH. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.