INDIAN CORRUGATED CASE MANUFACTURERS ASSOCIATION, MUMBAI V. ITO (E) -1 (3), MUMBAI

ITA 3369/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2361 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 18-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK PATIL SHRI KUM
• Keywords: Opportunity of being heard
• Section: 13; 12; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI C.N. PRASAD , JM & SHRI M.BALAGANESH, AM ITA NO. 3369 /MUM/201 8 ( ASSESSMENT YEAR : 2014 - 15 ) M/S. INDIAN CORRUGATED CASE MANUFACTURERS ASSOCIATION 314, VEENA KILLEDAR INDUSTRIAL,10/ 14, PAIS STREET BYCULLA (WEST) MUMBAI 400 011 VS. INCOME TAX OFFICER (EXEM) 1(3), MUMBAI PAN/GIR NO. AACCI1723K (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI VIPUL JOSHI & SHRI ASHOK PATIL REVENUE BY SHRI KUMAR PADMAPANI BORA DATE OF HEARING 04 / 02 /2020 DATE OF PRONOUNCEMENT 20 / 02 /2020 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 3369/MUM/2018 FOR A.Y. 2014 - 15 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 6, MUMBAI IN APPEAL NO. CIT(A) - 6/IT - 4/119/2017 - 18 DATED 26/03/2018 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(1) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE ACTION OF THE LD. AO IN DISALLOWING ITA NO .3369/MUM/2018 M/S. INDIAN CORRUGATED CARE MANUFACTURERS ASSOCIATION 2 THE EXEMPTION U/S.11 & 12 OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSEE IS A COMPANY INCORPORATED U/S.25 OF THE COMPANIES ACT, 1956. WHILE APPLYING FOR PAN, THE ASSESSEE HAD MENTIONED THE STATUS AS C OMPANY INSTEAD OF AOP(TRUST). THE PAN ALLOTTED TO THE COMPANY IS AACCI1723K. EVEN IN THE INCOME TAX RETURN, THE ASSESSEE HAD ME NTIONED ITS STATUS AS A COMPANY. THE ASSESSEE TRUST IS DULY REGISTERED U/S.12A OF THE INCOME TAX ACT. IN RESPECT OF THE SURPLUS DERIVED BY IT, THE ASSESSEE CLAIMED EXEMPTION U/S.11 IN THE SUM OF RS.54,43,948/ - WHILE FILING THE RETURN OF INC OME. BUT SINCE THE INCOME TAX R ETURN WAS FILED IN THE STATUS OF C OMPANY INSTEAD OF AOP(TRUST), THE CENTRAL PROCESSING CENTRE (CPC) / THE LD. AO VIDE INTIMATION DATED 28/02/2016 DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.54,43,948/ - AFTER DISALLOWING THE CLAIM OF EXEMPT ION U/S.11 OF THE ACT. THE ASSESSEE APPLIED FOR RECTIFICATION OF THE SAID INTIMATION WITH A REQUEST TO TREAT THE STATUS OF THE ASSESSEE AS AOP (TRUST) INSTEAD OF COMPANY AND THEREBY GRANT CLAIM OF EXEMPTION U/S.11 OF THE ACT. THIS RECTIFICATI ON APPLICATION U/S.154 OF THE ACT WAS REJECTED BY THE CPC / LD. AO ON THE PLEA THAT ASSESSEE HAD CHANGED ITS STATUS FROM COMPANY TO AOP(TRUST) IN SECTION 154 PROCEEDINGS WHICH TANTAMOUNT TO FRESH CLAIM MADE BY THE ASSESSEE WHICH CANNOT BE ENTERTAINED I N SECTION 154 PROCEEDINGS. THIS ACTION OF THE CPC / LD. AO WAS UPHELD BY THE LD. CIT(A). AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 4 . IT IS NOT IN DISPUTE THAT ASSESSEE HAD FILED A RECTIFIED ITR - 7 MENTIONING ITS STATUS AS AOP(TRUST) BEFORE THE LD . AO. IT IS NOT IN DISPUTE THAT ASSESSEE IS A TRUST (I.E. SECTION 25 COMPANY) DULY REGISTERED ITA NO .3369/MUM/2018 M/S. INDIAN CORRUGATED CARE MANUFACTURERS ASSOCIATION 3 U/S.12A OF THE ACT. BUT WE FIND FROM THE COPY OF INTIMATION U/S.143(1) DATED 08/12/2016, THE CP C HAS ACCEPTED THE STATUS OF THE ASSESSEE AS AOP(TRUST) AND THE RETURN FILED U/S.139(4 A ) OF THE ACT. HAVING DONE SO, THE CLAIM OF EXEMPTION OF THE ASSESSEE U/S.11 OF THE ACT COULD NOT BE DENIED MERELY BASED ON THE STATUS WHICH HAS BEEN ERRONEOUSLY MENTIONED BY THE ASSESSEE WHILE FILING ITS RETURN OF INCOME. IT IS NOT I N DISPUTE THAT THE OBJEC TS OF THE ASSESSEE TRUST ARE CHARITABLE IN NATURE. BOTH THE PARTIES ADMITTEDLY STATED THAT REGISTRATION GRANTED U/S.12A OF THE ACT TO THE ASSESSEE TRUST IS STILL IN FORCE. IN THIS SCENARIO, WE ARE UNABLE TO PERSUADE OURSELVES TO ACC EPT TO THE ACTION OF THE LOWER AUTHORITIES IN REJECTING THE CLAIM OF EXEMPTION U/S.11 OF THE ACT. HOWEVER, IN ORDER TO ENSURE THAT ASSESSEE HAD DULY COMPLIED WITH OTHER CONDITIONS STIPULATED IN SECTION. 11, 12 & 13 OF THE ACT, WE DEEM IT FIT AND APPROPRIAT E IN THE INTEREST OF JUSTICE AND FAIR PLAY , TO REMAND THIS ISSUE TO THE FILE OF THE LD. AO FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE IS AT LIBERTY TO ADDUCE FRESH EVIDENCE, IF ANY , IN SUPPORT OF ITS CONTENTIONS. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN TH E OPEN COURT ON THIS 20 / 02 /2020 SD/ - ( C.N. PRASAD ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 20 / 02 / 2020 KARUNA , SR.PS ITA NO .3369/MUM/2018 M/S. INDIAN CORRUGATED CARE MANUFACTURERS ASSOCIATION 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//