Appeal details
Counselvise Citation
326119914 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 4 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-09-2013
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
01-05-2013
Assessment Year
2001-2002
Appeal Filed On
25-04-2011
Judgement Text
IN THE INCO ME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO. 3261/M/2011 ( / ASSESSMENT YEAR : 2001 - 20 02 ) ITO (E) - 1(1), R.NO. 503, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI 400 012. / VS. DAWAT E HADIYAH, BADRI MAHAL, 3 RD FLOOR, DR. DADABHOY NOWEROJEE ROAD, FORT, MUMBAI. ./ PAN : AAATD 1489 N ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI F.B. ANDHYARUJINA / RESPONDENT BY : SHRI C.G.K. NAIR, DR / DATE OF HEARING : 13 .8.2013 / DATE OF PRONOUNCEMENT : 4.9 . 2013 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 25.4.2011 IS AGAINST THE ORDER OF CIT (A) - 1, MUMBAI DATED 15.11.2010 FOR THE ASSESSMENT YEAR 2001 - 2002. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN LAW AND FACTS BY NOT APPRECIATING THE FACT THAT IT IS MANDATORY FOR THE AO TO FOLLOW THE DIRECTIONS OF THE HONBLE ITAT VIDE ITS ORDER DATED 17.4.2008, WH I LE PASSING ORDER U/S 143 (3) R.W.S 254 AND IF THE ASSESSEE WAS AGGRIEVED BY THE DIRECTIONS OF THE ITAT, THEN THE RELIEF FOR THE SAME COULD HAVE BEEN ATTEMPTED BY FILING APPEAL WITH THE HONBLE HIGH COURT AGAINST THE ORDER OF THE ITAT THAN FILING AN APPEAL WITH THE CIT (A) AGAINST THE ORDER PASSED BY AO U/S 143(3) R.W.S. 254. . 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS A RELIGIOUS AND CHARITABLE TRUST ESTABLISHED FOR THE BENEFIT OF DAWOODI BOHRA COMMUNITY. ASSESSEE FILED THE RETURN OF INCOME D ECLARING THE TOTAL INCOME OF RS. NIL. ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND ASSESSMENT ORDER, DATED 16.4.2004, WAS PASSED DISALLOWING THE DEPRECIATION CLAIM OF RS. 3,64,42,715/ - , ACCUMUL ATION U/S 11(1)(A) OF THE ACT. AGGRIEVED, ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. DURING THE FIRST APPELLATE PROCEEDINGS, CIT (A) UPHELD THE ORDER OF THE AO. EX - CONSEQUENTI, THE INCOME OF THE ASSESSEE WAS 2 ASSESSED AT A DEFICIT OF RS. 5,20,23,717/ - . AGGRIEVED WITH THE DECISION OF THE CIT (A), ASSESSEE FILED AN APPEAL BEFORE THE ITAT AGAINST THE ORDER OF THE CIT (A) ON THE SOLITARY GROUND RELATING TO THE ISSUE OF ACCUMULATION U/S 11(1)(A) OF THE ACT . THE ITAT VIDE ITS ORDER DATED 17.4.2008 IN ITA NO.4309/MUM/2005, RELYING ON THE JUDGM ENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANIZATION (248 ITR 1), SET ASIDE THE ORDER OF THE CIT (A) AND RESTORED THE MATTER TO THE FILES OF THE AO WITH A DIRECTION TO ALLOW THE CARRY FORWARD OF THE EXCESS EXPENDITUR E INCURRED BY THE ASSESSEE TO SUBSEQUENT YEAR FOR ITS SET OFF ONLY IN TERMS INDICATED. IN THE SET ASIDE PROCEEDINGS, AO DISALLOWED THE ACCUMULATION BY OBSERVING AS UNDER: IT IS AN ACCEPTED PRINCIPLE THAT EVERY INCOME TAX ASSESSMENT IS AN SEPARATE AND INDEPENDENT UNIT. THE ITAT HAS DULY CONSIDERED THE RELEVANT LAWS INCLUDING THE DECISION OF THE APEX COURT IN THE CASE OF CIT VS. PROGRAMME FOR COMMUNITY ORGANIZATION (248 ITR 1) BEFORE GIVING THE DIRECTION TO DISALLOW THE ACCUMULATION U/S 11(1)(A). RESPE CTFULLY FOLLOWING THE DECISION OF THE ITAT, THE ACCUMULATION IS DISALLOWED. 4. AGGRIEVED WITH THE ORDER OF THE AO, ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). 5. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, CIT (A) CONSIDERED THE SUBM ISSIONS OF THE ASSESSEE AND ALLOWED THE CLAIM FOR ACCUMULATION OF INCOME OF THE ASSESSEE. AGGRIEVED WITH THE DECISION OF THE CIT (A), REVENUE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE ABOVE MENTIONED GROUNDS. 6. DURING THE PROCEEDINGS BEFORE US, A T THE O UTSET, SHRI F.B. ANDHYARUJINA, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE IMPUGNED ORDER EMANATES FROM THE ASSESSMENT ORDER DATED 24.12.2009 , WHICH WAS PASSED U/S 143(3) R.W.S 254 OF THE ACT, GIVING EFFECT TO THE ORDER OF THE TRIBUNAL DATED 17.4.2008 V IDE ITA NO.4309/MUM/2005. FURTHER, LD COUNSEL BROUGHT OUR ATTENTION TO THE PAPER BOOK AND MENTIONED THAT THE SAID ORDER OF THE TRIBUNAL WHICH WAS RELIED HEAVILY BY THE AO WAS RECALLED VIDE MISCELLANEOUS APPLICATION NO.237/MUM/2012 DATED 8.3.2013. IN THESE CIRCUMSTANCES, THE IMPUGNED ORDER DOES NOT SURVIVE AND THE APPEAL OF THE REVENUE IS REQUIRED TO BE DISMISSED AS IN FRUCTUOUS. 7 . ON THE OTHER HAND, LD DR HAS NO OBJECTION IN THIS REGARD. 3 8 . WE HAVE HEARD BOTH PARTIES AND PERUSED THE ORDERS OF THE REVE NUE AUTHORITIES AS WELL AS THE ORDER OF THE TRIBUNAL DATED 17.4.2008. IMPUGNED ORDER EMANATES FROM THE ASSESSMENT ORDER DATED 24.12.2009, WHICH WAS PASSED U/S 143(3) R.W.S 254 OF THE ACT, GIVING EFFECT TO THE ORDER OF THE TRIBUNAL DATED 17.4.2008 VIDE ITA NO.4309/MUM/2005. FURTHER, WE FIND THAT THE SAID ORDER OF THE TRIBUNAL WHICH WAS RELIED HEAVILY BY THE AO WAS SUBSEQUENTLY RECALLED VIDE MA NO.237/MUM/2012 DATED 8.3.2013. IN THESE CIRCUMSTANCES, THE IMPUGNED ORDER DOES NOT SURVIVE AND THE APPEAL OF THE RE VENUE IS REQUIRED TO BE DISMISSED AS IN FRUCTUOUS. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE AGAINST THE ORDER OF THE CIT (A) ARE DISMISSED AS IN FRUCTUOUS . 9 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRO NOUNCED IN THE OPEN COURT ON 4.9 . 2013. SD/ - SD/ - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 4.9 .2013 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDE D TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COP Y// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
