ASPEE AGRO EQUIPMENT P.LTD, MUMBAI V. DCIT 12(1)(1), MUMBAI

ITA 3167/MUM/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4643 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, MUMBAI SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER ITA No. 3167/MUM/2019 (ASSESSMENT YEAR: 2009-10) ITA No. 3168/MUM/2019 (ASSESSMENT YEAR: 2010-11) & ITA No. 3169/MUM/2019 (ASSESSMENT YEAR: 2011-12) Aspee Agro Equipment Pvt. Ltd., Aspee House, B J Patel Road, Malda (W), Mumbai - 400064 [PAN: AAACA8980G] Deputy Commissioner of Income Tax, 12(1)(1), Mumbai, Room No. 223, 2 nd Floor, Aaykar Bhavan, M.K. Road, Mumbai - 400020 ................ Vs ................. Appellant Respondent Appearances For the Appellant/ Assessee For the Respondent/Department : : None Shri Vinod Bhaskaran Date of conclusion of hearing Date of pronouncement of order : : 07.04.2022 22.06.2022 O R D E R Per Rahul Chaudhary, Judicial Member: 1. These are three appeals pertaining to Assessment Year 2009- 10, 2010-11 and 2011-12 preferred by the Appellant challenging the order of CIT(A) dismissing the appeal filed by the Appellant against the disallowance of deduction made by ITA Nos. 3167-3169/Mum/2019 Assessment Years: 2009-10, 2010-11 & 2011-12 2 the Assessing Officer as per Section 35(1)(ii) of the Act in re- assessment proceedings concluded vide order passed under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟). 2. The Ld. Departmental Representative appearing before us submitted that identical issues have been raised in these appeals which pertain to disallowance of claim made by the Appellant under Section 35(1)(ii) of the Act by the Assessing Officer in re-assessment proceedings initiated on the basis of information received from the office of Income Tax Officer, Exemption – 1(1), Mumbai that Central Board of Direct Taxes has rejected the Application filed by the donee institution, i.e., Aspee Agricultural Research & Development Foundation, for obtaining approval under Section 10(21) of the Act, and therefore, the Appellant has incorrectly claimed deduction under Section 35(1)(ii) of the Act in respect of donations made by the Appellant to the aforesaid donee institution. He further submitted that none has been appearing for the Appellant since least few hearings. 3. On perusal of the record, we note that the Writ Petition (WP/1951/2013), filed by the donee institution before the Hon‟ble Bombay High Court against the order rejecting the application for renewal/approval has been admitted and is pending disposal. Further, vide letter, dated 11.02.2022, the Appellant had, inter alia, requested for remand of the matter to the file of Assessing Officer with the directions to pass order after considering the decision of the Hon‟ble Bombay High Court in the aforesaid Writ Petition (WP/1951/2013) filed by the donee institution. The Appellant had also placed on record a ITA Nos. 3167-3169/Mum/2019 Assessment Years: 2009-10, 2010-11 & 2011-12 3 copy of the order, dated 28.01.2022, passed by the Tribunal in the case of sister-concern of the Appellant remanding the matter to the file of Assessing Officer. We have perused the aforesaid order, dated 28.01.2022, passed in the case of American Springs & Pressing Works Pvt. Ltd.: ITA No. 3496/Mum/2019, Assessment Year 2010-2011, the relevant extract of which reads as under: “2. The only issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in sustaining the disallowance of claim of assessee u/s.35(1)(ii) of the Act. 3. We have heard rival submissions and perused the materials available on record. The assessee is a private limited company engaged in the business of manufacturing and sale of agricultural equipments and implements. The original return of income was electronically filed for the A.Y.2010-11 on 30/09/2010 declaring total income of Rs.215,36,770/-. This return was duly processed u/s.143(1) of the Act on 15/04/2011. Subsequently this assessment was sought to be reopened by issuance of notice u/s.148 of the Act on 23/03/2015. In response thereto, the assessee vide letter dated 27/03/2015 stated that the return filed originally on 30/09/2010 may be treated as return in response to notice issued u/s.148 of the Act. The reasons recorded for reopening the assessment was communicated to the assessee vide letter dated 14/05/2015. During the course of re-assessment proceedings, the ld. AO observed that assessee had claimed weighted deduction of Rs. 5 lakhs u/s.35(1)(ii) of the Act @ 125% of contribution of Rs.4 lakhs made to M/s. Aspee Agricultural Research and Development Foundation. The assessee was directed to furnish the approval obtained from the Income Tax ITA Nos. 3167-3169/Mum/2019 Assessment Years: 2009-10, 2010-11 & 2011-12 4 department by the recipient of donation in order to justify the claim of deduction u/s.35(1)(ii) of the Act in the hands of the assessee. The assessee submitted that the Donee Institution is recognised by Ministry of Science and Technology, Department of Science and Industrial Research, Technology Bhawan, New Delhi. The assessee submitted that since the Donee Institution was enjoying the recognition up to 2004 and thereafter had sought for renewal of the same by way of preferring the application before the CBDT and that the CBDT had not acted on the said application. In respect of deduction claimed by the assessee u/s.35(1)(ii) of the Act, the ld. AO observed that the assessee would be entitled for such deduction only when the DIT (Exemption) had issued approval to the said research association subject to fulfilment of conditions regarding application, its income for scientific research purposes, its accumulation and use u/s.11(2)/11(3) of the Act. The ld. AO observed that in the instant case, the assessee has not submitted such approval given by DIT (Exemption) to the Donee Institution. The ld. AO also gathered information from the Jurisdictional DIT (Exemption) of the Donee Institution which revealed the fact that the application for approval u/s.10(21) of the Act has been rejected vide order dated 2/11/2012 by CBDT. Based on these facts, the ld. AO proceeded to disallow the claim of weighted deduction u/s.35(1)(ii) of Rs.5 lakhs while completing the assessment in the hands of the assessee. This was upheld by the ld. CIT(A). 3.1. During the course of hearing, the ld. AR placed reliance on the decision of the Co-ordinate Bench of this Tribunal in assessee‟s own case for A.Y.2011-12 in CO No.141/Mum/2019 dated 21/05/2019 wherein the very same issue was subject matter of adjudication by the ITA Nos. 3167-3169/Mum/2019 Assessment Years: 2009-10, 2010-11 & 2011-12 5 Tribunal and that the Tribunal had remanded the matter to the file of the ld. AO to decide based on the final outcome of the writ petition No.1951 of 2013 filed by the assessee before the Hon‟ble Bombay High Court. 3.2. Admittedly, the said Donee Institution had filed writ petition against the order of CBDT rejecting its claim of recognition vide writ petition No.1951 of 2013 before the Hon‟ble Bombay High Court which has been duly admitted. We find that no purpose would be served by keeping this appeal pending before us. Instead the proposal was put across to both the parties at the time of hearing by the Bench wherein the Bench suggested that this appeal be restored to the file of the ld. AO to decide the same based on the final outcome of the writ petition by the Hon‟ble Bombay High Court. Both the parties fairly agreed for the same. Accordingly, we deem it fit and appropriate to remand this issue to the file of the ld. AO to decide based on the final outcome of the writ petition of the Hon‟ble Bombay High Court as it would have a bearing on the issue in dispute. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.” 4. Ld. Departmental Representative did not have any objections to the aforesaid request made by the Appellant, vide letter dated 11.02.2022, seeking remand the matter to the file of the Assessing Officer. 5. In view of the above, we remand the issue in the present appeals to the file of the Assessing Officer to be decided on the basis of final outcome of the Writ Petition (WP/1951/2013) filed by the donee institution, i.e., Aspee Agricultural Research & Development Foundation before the Hon‟ble Bombay High Court as the same would have a direct bearing on the issue raised in the appeals. As the issues are being remanded back, ITA Nos. 3167-3169/Mum/2019 Assessment Years: 2009-10, 2010-11 & 2011-12 6 all the rights and contentions pertaining to the issues raised in appeals are left open. Accordingly, all the three appeals are disposed off with the aforesaid directions. 6. In the result, ITA No. 3167/Mum/2019 (Assessment Year 2009- 10), ITA No. 3168/Mum/2019 (Assessment Year 2010-11) and ITA No. 3169/Mum/2019 (Assessment Year 2011-12) filed by the Appellant are allowed for statistical purposes. Order pronounced on 22.06.2022. Sd/- Sd/- (Prashant Maharishi) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 22.06.2022 Alindra, PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai