M/s Bidar Nirmithi Kendra , Bidar V. The Income Tax Officer Ward-1 , Bidar

ITA 3443/BANG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2828 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-03-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; TDS; Set aside
• Section: 143(3); 12A; 12AA; 201; 264; 139(1); 13; 148; 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES A BENCH: BANGALORE BEFORE SHRI A.K. GARODIA , ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO S . 1860 TO 1864 /BANG/2018 & 3442 & 3443/BANG/2018 (ASSESSMENT YEAR S : 2009 - 10 TO 201 5 - 16 ) M/S. BIDAR NIRMITHI KENDRA, BASAVESHWARA CIRCLE, NAUBAD, BIDAR. .APPELLANT PAN:AABAN0989K VS. INCOME TAX OFFICER , WARD 1, BIDAR . RESPONDENT. ASSESSEE BY: SHRI T. SRINIVASA, C.A. REVENUE BY: MS. NEERA MALHOTRA, CIT (D.R) DATE OF HEARING : 10.03 .20 20 DATE OF PRONOUNCEMENT : 13 .03 .20 20 O R D E R PER BENCH : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), GULBARGA PASSED UNDER SECTION 143(3) R.W.S. 147 AND 264 OF THE INCOME TAX ACT, 1961 ('THE ACT'). SINCE ALL THE APPEALS HAVE COMMON AND IDE NTICAL ISSUES , THEY ARE CLUBBED AND HEARD TOGETHER AND 2 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 CONSOLIDATED ORDER IS PASSED. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP ITA NO.1860/BANG/2018 AND THE FACTS NARRATED THEREIN. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL AND ADDITIONAL GROUNDS OF APPEAL AS UNDER: 3 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 ADDITIONAL GROUNDS OF APPEAL 4 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 3. AT THE TIME OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE HAS FILED PETITION FOR CONDO NATION OF DELAY IN FILING THE APPEAL WITH 1 DAY DELAY AND THE LDDR HAS NO OBJECTIONS AND THE DELAY IS CONDONED. FURTHER, THE LDAR PRAYED FOR THE ADMISSION OF ADDITIONAL GROUNDS OF APPEAL AND THE REVENUE HAS NO SERIOUS OBJECTION S, ACCORDINGLY ADDITIONAL GROUNDS OF APPEAL ARE ADMITTED. 4. THE LEARNED AUTHORIZED RE PRESENTATIVE H AS RESTRICTED HIS ARGUMENTS ON THE ADDITIONAL GROUNDS OF APPEAL . 5 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 5. THE BRIEF FACTS OF THE CASE ARE, THE ASSESSEE IS A SOCIETY REGISTERED UNDER KARNATAKA SOCIETIES ACT, 1960 AND HAVING INCOME FROM GOVERNMENT CONTRACT S AND H IRING OF VE HICLES. THE ASSESSING OFFIC ER RECORDED THE REAS ONS FOR ESCAPEMENT OF INCOME HAS ISSUED NOTICE UNDER SECTION 148 OF THE ACT FOR FILING THE RETURN OF INCOME. WHEREAS, THE ASSESSMENT WAS CONCLUDED UNDER SECTION 144 R.W.S. 147 OF THE ACT ON 22.02.2016. SUBSEQ UENTLY, THE ASSESSEE SOCIETY FILED REVISION PETITION UNDER SECTION 264 OF THE ACT BEFORE THE PRIN. CIT, KALABURGI ,WHEREAS THE PRIN. CIT VIDE ORDER UNDER SECTION 264 OF THE ACT HAS SET ASIDE THE ASSESSMENT TO THE FILE OF ASSESSING OFFICER WITH DIRECTION T O PASS A FRESH ASSESSMENT ORDER IN ACCORDANCE WITH LAW AND PROVIDE ADEQUATE OPPORTUNITY OF HEARING TO THE AS SESSEE. THE ASSESSING OFFICER POST ED THE CASE FOR HEARING AND PROVIDED OPPO RTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE HAS FILED THE RETURN O F INCOME AND THE AO IN THE ASSESSMENT PROCEEDINGS CALLED FOR DETAILS AND FINALIZED THE ASSESSMENT WITH DISALLOWANCE OF EXPENDITURE FOR NON - DEDUCTION OF TDS APPLYING THE PROVISIONS OF SECTION 40A (IA) OF THE A CT AS PER ACT. THE A O OBSERVED THAT TDS WAS NOT DED UCTED ON SUB - CONTRACT ORS WORK EXPENSES, CONSULTANCY CHARGES, FABRICATION EXPENSES , LAB OUR AND VEHICLE HIRE CHARGES AGGREGATING TO R S.8,65,14,782/ - . FURTHER THE ASSESSING OFFICER FOUND THA T THE EXPENDITURE WAS DEBITED IN RESPECT OF STUDENT WELFARE FORUM SCH OLARSHIP, EXPENDITURE ON BIDAR UTSAV, OUTSTANDING VAT AND R ETURN OF ACA FUND AGGREGATING TO RS.1,63,38,786/ - SINCE THE ASSESSEE HAS NOT 6 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 ESTABLISHED THE N ATURE OF EXPENSES, THE AO APPLIED THE PROVISIONS OF SECTION 4 3 B OF THE ACT, WERE THE ASSESSEE SHOU LD H AVE PAID THE AMOUNT TO GOVERNMENT AUTHORITIES WITHIN DUE DATE UNDER SECTION 139(1) OF TH E ACT AND A SSESSED THE TOTAL INCOME OF RS.10,59,46,438 AND PASSED THE ORDER UNDER SECTION 143(3) R.W.S. 147 AND 264 OF THE ACT ON 21.12.2017. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(APPEALS). THE CIT(APPEALS) CONSIDERING THE GROUNDS OF APPEAL AND SUBMISSIONS OF THE ASSESSEE AND THE FACTS THAT NO REGISTRATION 12A OF THE ACT IS AVAILABLE WITH THE ASSESSEE, RELIED ON THE JUDICIAL DECISIONS AND CONFIRMED THE DISALLOWANC ES OF AO AND D ISMISSED THE ASSESSEE'S APPEAL. AGGRIEVED BY THE ORDER OF CIT(APPEALS), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS ERRED IN DISMISSING THE APPEAL INCLUDING THE ADDITIONAL GROUNDS OF APPEAL WITHOUT CONSIDERING LOGICAL AND REASONAB LE EXPLANATIONS. THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS OF APPEAL B EFORE THE TRIBUNAL ON THE JURISDICTION AND APPLICABILITY OF PROVISIONS OF SECTION 40A (IA) OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED TH A T THE ASSESSEE WAS GRANTED REGISTRATION U/SEC12AA VIDE ORDER DT.9.3.2020 AND PLACED A COPY ON RECORD . FURTHER SUPPORTED THE SUBMISSIONS WITH PAPER BOOK AND PRAYED FOR ALLOWING THE 7 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 APPEAL. CONTRA, THE LD. DR OBJECTED TO THE SUBMISSIONS AND RELIED ON THE CIT ( APPEALS) ORDER. 7. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED AUTHORIZED REPRESENTATIVE HAS RESTRICTED HIS ARGUM ENTS TO THE EXTENT OF ADDITIONAL GROUNDS OF APPEAL S. THE CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE THAT T HE CIT(APPEALS) HAS DISMISSED THE GROUNDS OF APPE AL WITHOUT CONSIDERING THE EXPLANATION S AND THE PROCESS OF OBTAINING OF R EGI STRATION UNDER 12A OF THE ACT. WE FOUND THAT T HE CIT(APPEALS) HAS NOT MADE ANY OBSERVATIONS OR FINDINGS IN RESPECT OF ADDITIONAL GR OUNDS OF APPEAL, THAT THE PROVISIONS OF SECTION 40 ( A ) (IA) OF THE ACT ARE NOT APPLICABLE TO THE CHARITABLE INSTITUTIONS REGISTERED UNDER KARNATAKA SOCIETIES ACT, 1960.T HE LEARNED AUTHORIZED REPRESENTATIVE DEMONSTRATED WITH THE COPY OF ORDER OF REGISTRATION UNDER SECTION 12AA O F THE ACT DT.9.3.2020 AND EXPLAINED THAT THE FACT OF REGISTRATION UNDER SECTION 12A WAS NOT AVAILABLE BEFORE T HE ASSESSING AUTHORITY OR THE CIT(APPEALS) AND PRAYED FOR AN OPPORTUNITY TO SUBSTANTIATE BEFORE THE LOWER AUTHORITIES. WE CO NSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORIZED RE PRESENTATIVE, FACT S AND CIRCUMSTANCES, AND THE REGISTRATION UNDER SECTION 12AA O F THE ACT OBTAINED , FIND THA T THE CIT ( APPEALS) ORDER WAS PASSED ON 19.03.2018 WHEREAS THE REGISTRATION UNDER SECTION 12A OF THE A CT WAS GRANTED ON 9.3.2020.FURTHER, IN THE APPELLATE PROCEEDINGS BEFORE CIT(APPEALS), REGISTRATION UNDER SECTION 12AA O F THE ACT WAS NOT AVAILABLE 8 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 TO THE ASSESS EE AND LEARNED CIT(A PPEALS) DEALT ON DISPUTES AND DISMISSED THE APPEAL. THE ASSESSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL, WHICH ARE TO BE ADJUDICATED BY THE APPELLATE AUTHORITY CONSIDERING AVAILABILITY OF REGISTRATION U/SEC12AA OF THE ACT. ACCORDINGLY, TO MEET THE ENDS OF JU STICE, WE SET ASIDE THE ORDER OF CIT(APPEALS) AND RESTORE ENTIRE DISPUTED ISSUE S AND ADDITIONAL GROUNDS OF APPEAL TO THE FILE OF CIT(APPEALS) TO ADJUDI CATE AFRESH ON MERITS AND PASS A SPEAKING ORDER, IF THE ASSESSEE FAILS ON LEGAL ISSUE THEN THE CIT(APPEALS) SHALL ADJUDICATE THE DISPUTED ISSUE ON MERIT S CONSIDERING THE REGISTRATION U/SEC12AA OF THE ACT AND THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND SHALL CO - OPERATE IN SUBMITTI NG THE INFORMATION FOR EARLY DISPOSAL AND ALLOW THE GROUNDS OF APPEAL OF ASSESSEE FOR STATISTICAL PURPOSES. 8. SIMILARLY, THE ASSESSEE HAS FILED APPEALS IN ITA NOS. 3442 & 3443/BANG/2018 AND ITA NO 1861 TO 1864/BANG/2018 FOR A.YS 2009 - 10&2011 - 12 TO 2 015 - 16 WERE THE DELAY IN FILLING THE APPEALS IS CONDONED AND THE ISSUES ARE SIMILAR AND IDENT ICAL. THE DECISION IN ITA NO.1860/BANG/2018 SHALL EQUALLY APPLY. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) IN THESE APPEALS AND RESTORE THE ENTIRE DISPUTED ISSUE TO THE FILE OF CIT(APPEALS) FOR ADJUDICATION ON MERITS WITH SIMILAR DIRECTIONS AND ALLOW THE GROUNDS OF APPEALS OF ASSESSEE FOR STATISTICAL PURPOSES. 9 ITA NOS.1860 TO 1864, 3442 & 3443/BANG/2018 9. IN THE RESULT, THE ASSESSEE'S APPEALS IN ITA NOS. 3442 & 3443/BANG/2018 AND 1860 TO 1 864/BANG/2018 ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. S D / - S D / - ( A.K. GARODIA ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 3 .03 . 20 20 . *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (APPEALS) 4. PRIN. CIT 5. DR, ITAT 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE