ITO, New Delhi V. M/s. Mahavira Foundation, New Delhi

ITA 3383/DEL/2015

• Counselvise Citation: 338320114 RSA 2015
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 23-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 27-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YATENDRA SINGH
• Assessee Lawyers: VIKAS JAIN ADVS
• Keywords: Deemed to accrue or arise in india
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 3383 /DEL/201 5 : ASSTT. YEAR : 2010 - 11 INCOME TAX OFFICER (E), WARD - 1(4), CIVIC CENTRE, NEW DELHI VS M/S MAHAVIRA FOUNDATION, SANGA M PARK EXTN., G. T. KARNAL, ROAD, NEW DELHI - 110033 (APPELLANT) (RESPONDENT) PAN NO. A AATM1404A ASSESSEE BY : SH . SALIL KAPOOR & VIKAS JAIN , ADV S . REVENUE BY : SH. YATENDRA SINGH , SR. DR DATE OF HEARING : 23 .0 7 .2015 DA TE OF PRONOUNCEMENT : 23 .09 .2015 ORDER THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 31.03.2015 OF LD. CIT (A) - 40(EXEMPTION), NEW DELHI . 2 . THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL READ S AS UNDER : 1. ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE ADDITION OF THE ACCUMULATED SURPLUS OF RS. 14,94,507/ - AS INCOME OF THE TRUST IGNORING THIS FACT THAT ASSESSEE FAILED TO UTILIZED THE SAME WITHIN THE SPEC IFIED TIME. 3 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING NIL INCOME ON 30.09.2010. SUBSEQUENTLY, THE ASSESSEE ITA NO. 3383 /DEL /201 5 MAHAVIRA FOUNDATION 2 REVISED THE RETURN DECLARING NIL INCOME ON 17.10.2012. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE WAS ENGAGED IN IMPARTING EDUCATION AND WAS RUNNING SCHOOLS AND EDUCATIONAL INSTITUTIONS BY THE NAME OF MAHAVIR SENIOR MODEL SCHOOL, MAHAVIR JUNIOR MODEL SCHOOL AND MAHAVIR INST ITUTE OF EDUCATIONAL TRAINING & MANAGEMENT. HE FURTHER OBSERVED THAT THE SOCIETY WAS REGISTERED U/S 12A(A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND HAD ALSO BEEN GRANTED EXEMPTION U/S 80G OF THE ACT VIDE ORDER DATED 25.07.2008 F OR THE PERIOD FROM 01.04.2008 TO 31.03.2011. THE AO ALSO POINTED OUT THAT THE ASSESSEE SOCIETY WAS NOTIFIED U/S 10(23)(VI) OF THE ACT VIDE ORDER DATED 21.03.2011 FOR THE ASSESSMENT YEAR 2010 - 11 ONWARDS. THE AO POINTED OUT THAT THE ASSESSEE HAD ACCUMULATED FUNDS OF RS. 14,94,507/ - DURING THE FINANCIAL YEAR 2004 - 05 RELEVANT TO ASSESSMENT YEAR 2005 - 06 U/S 11(2) OF THE ACT AND THE FUNDS SO ACCUMULATED HAD TO BE UTILIZED UP TO THE FINANCIAL YEAR 2009 - 10 RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION I.E. ASSESS MENT YEAR 2010 - 11 AND SINCE THE ASSESSEE HAD NOT UTILIZED/APPLIED THE ACCUMULATED FUND FOR THE ASSESSMENT YEAR UNDER CONSIDERATION TO THE TUNE OF RS. 14,94,507/ - . HE, THEREFORE, DISALLOWED THE SAME AND CONSIDERED IT AS DEEMED INCOME . ACCORDINGLY, THE ADDIT ION OF RS. 14,94,507/ - WAS MADE. 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE AO WAS NOT JUSTIFIED TO MAKE THE ADDITION OF RS. ITA NO. 3383 /DEL /201 5 MAHAVIRA FOUNDATION 3 14,94,507/ - U/S 11(2) OF THE ACT AS THE ASSESSEE HAD ALREADY UTILIZED OR APPLIED THE MONEY UP TO THE ASSESSMENT YEAR 2009 - 10 AND THERE WAS NO VIOLATION U/S 11(3)(C) OF THE ACT AND THE AO HAD ALSO NOT POINTED OUT ANY SPECIFIC AMOUNT, SO IT WAS JUST A GENERAL OBSERVATION OF THE AO. 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE OBSERVED THAT THE ASSESSEE HAD ALREADY UTILIZED THE ADDITIONAL ACCUMULATED AMOUNT AND NO SUCH AMOUNT WAS SPECIFICALLY PENDING IN THE BALANCE SHEET FOR UTILIZATION AND THAT APPARENTLY NO PROPER CASE WAS MADE OUT FOR MAKING THE ADDITION BY THE AO . ACCORDINGLY, THE IMPUGNED ADDITION WAS DELETED. 6 . NOW THE DEPARTMENT IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A). 7 . IN HIS RIVAL SUBMISSIONS THE LD. COUNSEL FOR THE ASSESSEE STRONGLY SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) . 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, THE EXPLANATION OF THE ASSESS EE THAT THE IMPUGNED AMOUNT HAD ALREADY BEEN UTILIZED UP TO THE ASSESSMENT YEAR 2009 - 10 AND NO SUCH AMOUNT WAS SPECIFICALLY PENDING IN THE BALANCE SHEET FOR UTILIZATION, HAS NOT BEEN REBUTTED. THEREFORE, I DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTM ENT. ITA NO. 3383 /DEL /201 5 MAHAVIRA FOUNDATION 4 9 . IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ( ORDER PRON OUNCED IN THE COURT ON 23 /09 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 23 /09 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR