MANDKE FOUNDATION, MUMBAI V. COMMISSIONER OF INCOME TAX (EXEMPTIONS), MUMBAI

ITA 3494/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6982 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 22-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SRIVASTAVA
• Assessee Lawyers: ARVIND SONDE
• Keywords: Audit objection
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI , JM ITA NO. 3494 / MUM/20 18 ( ASSESSMENT YEAR : 2013 - 14 ) M/S. MANDKE FOUNDATION RAO SAHEB ACHUTRAO PATVARDHAN MARG, FOUR BUNGLOWS, ANDHERI (W) MUMB AI 400 053 VS. COMMISSIONER OF INCOME T A X (EXEMPTION) MUMBAI PAN/GIR NO. AAATM4557G ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY SHRI JITENDRA SANGHVI & SHRI ARVIND SONDE REVENUE BY SHRI A.K. SRIVASTAVA DATE OF HEARING 20/12 /201 8 DATE OF PRON OUNCEMENT 07 / 01 /201 9 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT (EXEMPTIONS) DATED 31/03/2018 FOR A.Y.2013 - 14 FILED U/S.263 OF THE IT ACT. 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY TH E ASSESSEE A. ORDER PASSED U/S. 263 OF THE INCOME - TAX ACT 1961 ('THE ACT') IS BAD IN LAW: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (EXEMPTIONS), MUMBAI ('THE CIT(E)') ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND SETTING ASIDE OF THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT BY THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS) - 2(1), MUMBAI ITA NO. 3494/MUM/ 2018 M/S. MANDKE FOUNDATION 2 ('THE ASSESSING OFFICER') DATED 30.03.2016 ON THE ALLEGED GROUND THAT THE SAID ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED ORDER DATED 31.03.2018 PASSED BY THE LEARNED CIT(E) U/S. 263 OF THE ACT IS WITHOUT JURISDICTION, ILLEGAL, BAD IN LAW AND VOID - AB - INITIO AS THE LEARNED CIT(E) HAS NOT POINTED OUT THE REASON IN THE ORDER AS TO HOW THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE APPELLANT SUBMITS THAT IT BE HELD THAT THE ACTION OF THE LEARNED CIT(E) IN INVOKING PROVISIONS OF SECTION 263 OF THE ACT AND DIRECTING THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER BE HELD TO BE AB - INITIO AND /OR OTHERWISE VOID AND BAD IN LAW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(E) ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND DIRECTING SETTING ASIDE OF THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT BY THE ASSESSING OFFICER DATED 30.Q3.2016 ON THE BASIS OF AUDIT OBJECTIONS. THE APP ELLANT SUBMITS THAT THE ORDER PASSED U/S. 263 OF THE ACT BASED ON AUDIT OBJECTIONS IS VOID / AB - INITIO AND /OR OTHERWISE BAD IN LAW. WITHOUT PREJUDICE TO GROUND NOS. 1 TO 3: B. TRANSACTIONS WITH RELIANCE INNOVENTURES PRIVATE LIMITED ('RINL'): 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(E) ERRED IN SETTING ASIDE THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER ON THE ALLEGED GROUND THAT THE ASSESSING OFFICER HAS NOT VERIFIED THE ARRANG EMENT BETWEEN THE APPELLANT AND RINL WHICH REQUIRE THE APPELLANT TO PROVIDE FREE / CONCESSIONAL SERVICES TO THE EMPLOYEES OF RINL. THE APPELLANT SUBMITS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE APPELLANT HAS NOT PROVIDED ANY FREE OR CONCESSIONAL SERVICES TO RINL DURING THE YEAR UNDER CONSIDERATION AND THEREFORE THE DIRECTION OF THE CIT(E) TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER IS AB - INITIO AND/OR OTHERWISE VO ID AND BAD IN LAW. C. CONDUCTING 3 YEARS POST GRADUATE PROGRAMME IN EMERGENCY MEDICINE: 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(E) ERRED IN SETTING ASIDE THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER ON THE ALLEGED GROUND THAT THE ASSESSING OFFICER HAS NOT VERIFIED THE DETAILS IN RESPECT OF 3 YEARS POST GRADUATE PROGRAMME IN EMERGENCY MEDICINE CONDUCTED BY THE APPELLANT. ITA NO. 3494/MUM/ 2018 M/S. MANDKE FOUNDATION 3 THE APPELLANT SUBMITS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THEREFORE THE DIRECTION OF THE CIT(E) TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER IS AB - INITIO AND/OR OTHERWISE VOID AND BAD IN LAW. D. PROVISION OF RETAI NING NET INCOME: 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(E) ERRED IN SETTING ASIDE THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER ON THE ALLEGED GROUND THAT THE ASSESSING OFFICER HAS NO T VERIFIED THE OPERATION AND MAINTENANCE AGREEMENT ENTERED BETWEEN THE APPELLANT AND MALTI VASANT HEART TRUST WHICH REQUIRE THE APPELLANT TO RETAIN 30% OF THE NET INCOME ITSELF. THE APPELLANT SUBMITS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS NEITHE R ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE APPELLANT HAS NOT GIVEN ANY PROFIT / INCOME TO MALTI VASANT HEART TRUST DURING THE YEAR UNDER CONSIDERATION AND THEREFORE THE DIRECTION OF THE CIT(E) TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER IS AB - INITIO AND/OR OTHERWISE VOID AND BAD IN LAW. CORPUS DONATION RECEIVED FROM RAJIV SHAH ESTATE: 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(E) ERRED IN SETTING ASIDE THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER ON THE ALLEGED GROUND THAT THE ASSESSING OFFICER HAS NOT VERIFIED THE DETAILS IN RESPECT OF CORPUS DONATION OF RS. 1 CR. RECEIVED BY THE APPELLANT FROM RAJIV SHAH ESTATE THE APPELLANT SUBMITS THAT THE ORDER PASSED B Y THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AS THE ASSESSING OFFICER VERIFIED THE SAME DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE ACT AND THEREFORE THE DIRECTION OF THE CIT(E) TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER IS AB - INITIO AND/OR OTHERWISE VOID AND BAD IN LAW. GENERAL: 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR VARY FROM THE AFORESAID GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THIS A PPEAL WAS ORIGINALLY HEARD ON 09/10/2018, THEREAFTER PUT FOR CLARIFICATION ON 20/12/2018. THEREAFTER, ON 03/01/2019 LEANED AR FILED A LETTER BEFORE THE BENCH, WHICH READS AS UNDER: - ITA NO. 3494/MUM/ 2018 M/S. MANDKE FOUNDATION 4 IN CONNECTION WITH THE ABOVE APPEAL, WE UNDER THE INSTRUCTIONS FROM OUR ABOVE NAMED CLIENT SUBMIT AS UNDER - THE ABOVE APPEAL WAS ORIGINALLY HEARD ON 9.10.2018 AND FURTHER ON 20.12.2018 FOR CLARIFICATION. THE APPEAL FILED BY OUR CLIENT WAS AGAINST THE ORDER PASSED BY CIT U/S.263 SETTING ASIDE THE ASSESSMENT TO REDO THE SAME. SUBSEQUENT TO THE CLOSURE OF HEARING, THE ASSESSING OFFICER HAS GIVEN EFFECT TO THE ORDER OF CIT U/S.263. COPY OF THE ORDER U/S.143(3) R.W.S.263 DATED 27.12.2018 PASSED BY ASSESSING OFFICER IS ENCLOSED. THE ASSESSING OFFICER HAS NOT TAKEN ANY ADVERSE VIEW IN RESPECT OF ANY OF THE MATTERS ON WHICH THE LEARNED CIT HAD SET ASIDE THE ASSESSMENT ORDER. IN VIEW OF THE ABOVE, OUR CLIENT REQUESTS YOU TO PASS AN APPROPRIATE ORDER ON THE APPEAL CONSIDERING THE FRESH ORDER PASSED BY THE ASSESSING OFFICER. 4. IN VI EW OF THE ABOVE APPEAL FILED OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. 5. IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 / 01 /201 9 SD/ - ( RAM LAL NEGI ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 07 / 01 /201 9 KARUNA SR. PS 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//