The ACIT,(OSD)-,Range-4, Ahmedabad V. Karnavati Club Ltd., Ahmedabad

ITA 3278/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6021 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-07-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 3278/ AHD/2010 (ASSESSMENT YEAR 2007-08) ACIT, RANGE 4, AHMEDABAD VS. M/S. KARNAVATI CLUB LTD., S. G. HIGHWAY, AHMEDABAD PAN/GIR NO. : AAACK7865Q (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI KARTAR SINGH, CIT DR RESPONDENT BY: SHRI SUNIL TALATI, AR O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) XX, AHMEDABAD DATED 24.09.2010 FOR THE ASSESSMENT YEAR 2007-08 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1.1 THE LEARNED CIT(A) - XX, AHMEDABAD HAS ERRE D IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.5,70,19,50 0/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ENTRANCE FEES, WITH OUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD. 1.2 IN DOING SO, THE LEARNED CIT(A) HAS ERRED I N LAW AND ON FACTS IN NOT APPRECIATING THAT THE DECISION OF THE HONOURABL E ITAT IN THE ASSESSEE'S OWN CASE FOR EARLIER ASSESSMENT YEAR REL IED UPON BY THE LEARNED CIT(A) IN THE APPELLATE ORDER HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE MATTER IS SUB-JUDICE BEFORE THE HONOURABLE HIGH COURT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE DECISION OF THE ASS ESSING OFFICER. I.T.A.NO.3278 /AHD/2010 2 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LEARNED CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. 3. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS, THE LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD . CIT(A). HE ALSO SUBMITTED A COPY OF TWO TRIBUNAL ORDERS IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 1994-95 IN I.T.A. NO. 2682/AHD/2000 DATED 28.06.2006 AND FOR THE ASSESSMENT YEAR 1998-99 IN I.T.A. NO. 2337/ AHD/2002 DATED 10.10.2006. AND SUBMITTED THAT IN THESE TWO YEARS , THE TRIBUNAL IN ASSESSEES OWN CASE HAS DECIDED THIS ISSUE IN FAVOUR THE ASSES SEE AND IT WAS HELD THAT RECEIPT OF ENTRANCE FEE BY THE ASSESSEE FROM ITS ME MBERS WAS NOT A REVENUE OR TRADING RECEIPT AND, THEREFORE, CANNOT BE INCLUD ED IN THE ASSESSABLE INCOME. IT IS SUBMITTED THAT IN THE PRESENT YEAR A LSO, THE DISPUTE IS REGARD THE TREATMENT OF ENTRANCE FEE RECEIVED BY THE ASSESSEE FROM ITS MEMBERS AND HENCE, THE ORDER OF LD. CIT(A) SHOULD BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISIONS SUBMITTED BY THE LD. A.R. THE DISPUTE IN THE PRESENT CASE IS REGARDING ADDITION MADE BY THE A.O. OF RS.5,70,19,5 00/- BEING ENTRANCE FEE RECEIVED BY THE ASSESSEE COMPANY FORM ITS MEMBERS. LD. CIT(A) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOL LOWING TRIBUNAL DECISIONS IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 1994-9 5 AND 1998-99, COPIES OF WHICH ARE MADE AVAILABLE TO US. IN GROUND NO. 1.2 RAISED BY THE REVENUE, IT IS SEEN THAT THIS APPEAL HAS BEEN FILED BY THE REVE NUE ON THE BASIS THAT THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR EARLIER A SSESSMENT YEARS, WHICH HAS BEEN RELIED UPON BY THE LD. CIT(A), HAS NOT BEEN AC CEPTED BY THE DEPARTMENT AND THE MATER IS SUB-JUDICE BEFORE THE H ON'BLE HIGH COURT. THIS GOES TO SHOW THAT THIS IS NOT THE CASE OF THE REVEN UE THAT THE ISSUE INVOLVED IN THE PRESENT YEAR IS NOT COVERED BY THESE TWO TRIBUN AL ORDERS IN ASSESSEES OWN I.T.A.NO.3278 /AHD/2010 3 CASE FOR THE ASSESSMENT YEARS 1994-95 AND 1998-99. THIS BEING SO, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT YEAR AND HENCE, BY RESPECTFULLY FOLLOWING THE PRECEDENT, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 5. IN THE RESULT, APPEAL OF THE REVENUE STANDS DIS MISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011. SD./- SD./- (BHAAVNESH SAINI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 29 TH JULY 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE 1. DATE OF DICTATION 21/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25/7 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 26/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 29/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 29/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01/08/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..