Income Tax Officer, GONDA V. Cane Development Council, Balrampur

ITA 360/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4161 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT NIGAM D R SHRI J S SHUKLA
• Assessee Lawyers: LKW ASSESSMENT YEAR
• Keywords: Competent authority
• Section: 6; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI. P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T VARKEY, JUDICIAL MEMBER ITA NO.360 & 361/LKW/2016 ASSESSMENT YEAR:2011-12 & 2012-13 INCOME TAX OFFICER GONDA V. CANE DEVELOPMENT COUNCIL BALRAM P UR TAN/PAN:AAAAC3514A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMIT NIGAM, D.R. RES P ONDENT B Y : SHRI J. S. SHUKLA, ADVOCATE DATE OF HEARIN G : 25 07 2016 DATE OF P RONOUNCEMENT: 28 07 2016 O R D E R PER ABY T VARKEY, J.M: THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A), FAIZABAD DATE D 9.3.2016 FOR THE ASSESSMENT YEARS 2011-12 AND 2012-13. 2. SINCE THE ISSUE INVOLV ED IN THESE APPEALS IS COMMON, WE HAVE HEARD THESE APPEALS TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE GROUNDS RAISED BY THE REVENUE ARE COMMON IN BOTH THE APPEALS, HOWE VER, FOR THE SAKE OF REFERENCE, WE REPRODUCE THE GROUNDS RA ISED BY THE REVENUE IN ITA NO.360/LKW/2016 AS UNDER:- 1. THE LD. CIT(A), FAIZABAD HAS ERRED IN LAW AND ON FACTS IN TREATING THE ASSESSEE AS A CO-OPERA TIVE SOCIETY EVEN WHEN IT HAS NO CERTIFICATE OF REGISTRATION AS A CO-OPERATIVE SOCIETY FROM THE COMPETENT AUTHORITY. ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 2 2. THE LD. CTT(A), FAIZABAD HAS ERRED IN LAW AND ON FACTS BY ALLOWING CLAIM OF THE ASSESSEE FOR DE DUCTION U/S 80P(2) OF THE I.T. ACT (ACT) WITHOUT APPRECIATING THE FACT THAT UNDER THE PROVISIONS OF SEC. 80P(2)(A)(III) ONLY TH E PROFIT & GAINS OF BUSINESS ATTRIBUTABLE TO THE ACTIVITIES OF THE ASSESSEE IS ALLOWABLE AS DEDUCTION AND AS PER SEC. 14F OF THE ACT THE COMMISSION INCOME IS ASSESSABLE AS PER PROVISIONS OF SEC. 56(1) OF THE ACT UNDER THE HEAD 'INCOME FROM OTHER SOURCES' FOR WHICH THE BENEFIT OF SEC. 80P(2) IS NOT ALLOWABLE TO THE ASSESSEE. 3. THE LD. CIT(A), FAIZABAD HAS ER RED IN LAW AND FACTS BY DELETING THE ADDITION OF RS. 61,39,260/- TA KING THE SAME AS DEDUCTIBLE U/S 80P OF THE I.T. ACT IGNORING THE FA CT THAT THE ASSESSEE IS NEITHER A CO-OPERATIVE SOCIETY AS DEFINED U/S 2(19) OF I.T. ACT, 1961 NOR SUPPORTED BY SECTION 5 OF U.P. S UGAR CANE (REGISTRATION OF SUPPLY & PURCHASES) ACT, 1953 HENCE, TH E SAME WAS NOT ALLOWABLE TO THE ASSESSEE. 4. THE LD. CIT(A), FAIZABAD HAS ER RED IN LAW AND FACTS BY DELETING THE INTEREST INCOME EARNED FROM THE INVESTMENTS OF THE SURPLUS FUND TAKING THE SAME AS DEDUCTI BLE U/S 80P OF THE I.T. ACT IGNORING THE FACT THAT THE INTEREST IS EARNED FROM THE COMMERCIAL BANKS (THIRD PARTY) AND PRINCIPLE OF MUTUALITY IS NOT APPLICABLE IN THE CASE HENCE, THE INTEREST EA RNED WOULD BE INCOME OF THE ASSESSEE IN VIEW OF SEC. 2(24) OF THE I.T. ACT & IN VIEW OF THE JUDGEMENT OF THE HON' BLE SUPREME COURT IN THE CASE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. VS. ITO (2010) 322 ITR 283(SC) & JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF MANTOLA CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD. 3. THE LD. D.R. PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER AND ALSO SUBMITTED THAT ID ENTICAL CLAIMS MADE BY SIMILAR ASSESSEES HAVE BEEN SENT BACK BY THE TRIBUNAL TO THE ASSESSING OFFICER ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 3 TO RE-EXAMINE THE CLAIMS OF THE ASSE SSEE IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CA SE OF TOTGARS CO-OPERATIVE SALE SOCIETY LTD. (SUPRA). 4. THE LD. A.R. OF THE ASSESSEE FAIRLY CONCEDED THAT IN THE PRECEDING ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2009-10 AND 2010-11, AN IDENTICAL ISSUE WAS RAISED BEFORE THE TRIBUNAL BY CANE DEVELOPMENT COUNCIL, CHILWARIA, BAHRAICH AND THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFI CER TO RE-EXAMINE THE CLAI M OF THE ASSESSEE. HE HAS PLACED THE COPY OF THE ORDER OF THE TRIBUNAL DATED 31.3.2015 IN ITA NO.63/LKW/2014 FOR ASSESSMENT YEAR 2010-11 ON RECORD. 5. WE HAVE HEARD BOTH THE PARTIE S AND PERUSED THE RECORD. WE HAVE ALSO PERUSED THE ORDER OF THE TRIBUNAL IN SIMILAR CASE WHEREIN IDENTICAL ISSUE WAS EXAMINED BY THE TRIBUNAL, IN WHICH THE TRIBUNAL HAS RESTORED THE MATTER TO TH E FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE OBSERVATIONS MADE THEREIN. THE RELEVANT OBSERVATIONS OF THE TRIBUN AL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 2. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSI ONS, WE FIND THAT UNDISPUTEDLY AN IDENTICAL ISSUE WAS EXAMINED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009-10, IN WHICH THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. THE RELEVANT OBSERVATIONS OF THE TR IBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 9. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND JUDGMENTS FILED BE FORE US IN THE LIGHT OF RIVAL SUBMISSIONS, WE ARE OF THE CO NSIDERED VIEW THAT SINCE THE ABOVE GRANTS OR RECEIPTS ARE RE CEIVED BY THE ASSESSEE EITHER FROM THE GOVERNMENT OR ANY OTHER AGENCY FOR A PARTICULAR PURPOSE AND ASSESSEE HAS NO I NDEPENDENT RIGHT OVER IT, IT WOULD NOT PARTAKE THE CHARACTER OF INCOME U/S 2 (24) OF THE ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 4 ACT. THOUGH, THIS ARGUMENT WAS NOT RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIE S AND THE ASSESSEE HAD BEEN CLAIMING DEDUCTION U/S 80P (2) OF THE ACT OR EX EMPTION U/S 11 OF THE ACT, BUT THE GROUND OR ARGUMENT RAISED BEFORE US IS PLAUSIBLE AND LEGAL. THEREFORE, IT REQUIRE THE PROPER ADJUDICATION. 10. IN THE AFORESAID ORDER OF THE TRIBUNAL, IT HAS BEEN HELD THAT THE GRANT IN AID OR ANY OTHER RE CEIPT WHICH WERE NOT PRODUCT OF NORMAL BUSINESS ACTIVITY OF TH E ASSESSEE, IT COULD NOT BE TERMED AS REVENUE RECEIPT, SO AS TO FORM PART OF THE TOTAL INCOME. 11. IN THE CASE OF ITO VS CA NE DEVELOPMENT COUNCIL (SUPRA), THE SIMILAR ISSUE WAS RAISED ON SIMILAR FACTS AND FINDING FORCE IN THE CONTENTION OF THE ASSESSEE, THE TRIBUNAL HAS RESTORED THE MATTER TO THE ASSESSING OFFICE R TO EXAMINE THE CLAIM OF THE ASSESSEE IN LIGHT OF THESE SUBMIS SIONS. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS EXTRACTED AS UNDER :- 9. CONSIDERING THE WRITTEN S UBMISSIONS FILED BEFORE THE BENCH, IT WAS SEEN THAT ON BE HALF THE ASSESSEE IT HAS BEEN CANVASSED THAT THE ASSESSEE CO MPANY HAS BEEN ESTABLISHED BY AN ORDER DATED 06.04. 1989 PASSED BY THE CANE COMMISSIONER OF U.P. IN EXERCISE OF POWERS U/S 5 OF THE U.P. SUGAR CANE (REGULATION OF SUPPLY AND PURCHASES) ACT 1953 R/W RULE 8 OF THE U.P. SUGAR CANE (REGULATION OF SUPPLY AND PURCHASES) RULES 1954. ON DIVISION OF THE U.P. STATE AND FORMATION OF UTTRAKHA ND STATE LATER ON, THESE ACT AND RULES HAVE BEEN ADOPTED BY THE UTTRAKHAND STATE ALSO AS IT. THE FUNCTIONING AND AC TIVITIES OF THE ASSESSEE ARE STATED TO BE GOVERNED BY TH E PROVISIONS MADE UNDER THIS ACT AND RULES. IT HAS ALSO BEEN SUBMITTED THAT AS PER SECTION 6 OF THE SAID ACT, TH E FUNCTIONS OF THE ASSESSEEE ARE THAT IT CARRIES OUT ONLY THE DEVELOPMENT ACTI VITIES IN THE AREA ASSIGNED TO IT BY THE CA NE COMMISSIONER OF THE STATE. IT WAS ALSO SUBMITTED IN THE WRITTEN SUBMISSIONS THAT THERE IS NO PROVISION UNDER THE SA ID-ACT/RULE AUTHORIZING THE APPELLANT TO DO ANY BUSINESS ACTIVI TY WITH PROFIT MOTIVE OR TO EARN ANY INCOME/PROFIT AND TH E APPELLANT CARRIES OUT THE DEVELOPMENT ACTIVITIES AS SPEC IFIED UNDER AFORESAID ACT ON NO PROFIT NO LOSS BASIS. TH E APPELLANT IS MERELY A FUND MANAGEMENT BODY WITHOUT ANY RI GHT OF ABSOLUTE OWNERSHIP OVER THE FUNDS PLACED AT ITS DI SPOSAL. IT IS FURTHER MENTIONED ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 5 HERE THAT THE SAID ROADS, CULV ERTS, ETC. ARE CONSTRUCTED BY THE APPELLANT ON THE LAND BE LONGING TO THE GOVT. AND CONSTRUCTIONS MADE BY THE APPE LLANT THERE ON ALSO BELONGS TO THE GOVT. AS ABSOLUTE OWNE R AND NOT TO THE APPELLANT OR ANYBODY ELSE. THE FUNDS RECE IVED BY THE ASSEESSEE ARE EITHER BY WAY OF (A) VOLUNTAR Y GRANT FROM THE CENTRAL OR STATE GOVT. OR (B) CONTRIBUTIO N IN THE NAME OF COMMISSION FROM THE SUGAR MILLS, AS PROVID ED U/S 8 OF THE AFORESAID ACT. AS PER RULE 49 OF THE AFORESAI D RULES, THIS CONTRIBUTION AMOUNT IN THE NAME OF COMMISSION IS WORKED OUT THE SUGAR MILL WITH REFERENCE TO THE AMOUNT OF PURCHASE OF THE SUGAR CANE BY IT FROM THE CANE GROWERS ARE THE CANE GROVERS COOPERATIVE SOCIETY. AD DRESSING THE AMOUNT THE COMMISSION, IT IS STATED THAT IT IS WORKED OUT AND PAID BY THE SUGAR MILL TO THE APPELLANT, IS NOT SOLD/SUPPLIED BY THE APPELLANT TO THE SUGAR MILL NO R ANY SERVICE IS RENDERED BY THE APPELLANT TO THE SUGAR MILL PAYING AMOUNT IN THE NAME OF COMMISSION TO THE APPELLANT AS THERE IS NO PROVISION UNDER THE AFORESAID ACT AND RU LE FOR IT, HENCE THE AMOUNT PAID BY THE SUGAR MILL TO TH E APPELLANT THOUGHT IS IN THE NAME OF COMMISSION BUT, IN FACT , IT IS JUST A CONTRIBUTION AMOUNT. REFERRING TO THE MANDA TORY PROVISION MADE UNDER RULE 49A, THE ENTIRE AMOUNT OF SAID COMMISSION, WHICH IS, IN FACT, JUST A CONTRIBUTION AMOUNT, IS REQUIRED TO BE UTILIZED ON SPECIFIC PURPOSE OF CONSTRUCTI ON OF ROAD ETC. AND OTHER DEVELOPMENT ACTIVITIES ARE ASSIGNED TO THE APPELLANT AND NOT OTHERWISE. IT IS FURTHER SUBMITTED THAT THERE IS NO PROVISION UNDER AFORESAID ACT/RULES MADE THERE UNDER AUTHORIZING THE APPELLANT TO UTILIZED THE SAID AMOUNT OF SAID CONTRIBUTION PAID IN THE NAME OF COMMISSI ON FOR ANY PURPOSE OR TO DISTRIBUTE IT OR ANY PART OF IT TO ANYBODY AS PROFIT/INCOME. IT IS ALSO BEEN SUBMITTED THAT IN THE PRESENT CASE THE ASSESSEE HAS NEITHER DISTRIBUTED THE SAID CONTRIBUTION AMOUNT RECEIVED IN THE NAME OF COMMIS SION TO ANYBODY NOT UTILIZED IT FOR ANY PURPOSE OTHER THAN TH AT FOR WHICH IT HAS BEEN PAID TO THE APPELLANT. IT HAS ALSO ST ATED THAT THERE IS NO FINDING BY ANY LOWER AUTHORITIES THAT THE ASSESSEE HAS UTILIZED THE COMMISSION AMOUNT FOR ANY PURPO SE SIMILARLY THE SURPLUS NOT SPEND IS FULLY COVERED BE TH E ORDER OF THE DELHI BENCH IN N.S. COMMITTEE, VILLAGE T HANABHAWAN, TEHSIL SHAMIL, DISTT.- MUZAFFARNAGAR ORDER COPY FILED. ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 6 10. IN THE LIGHT OF WRITTEN SUBMISSIONS ADVANCED BY THE ASSESSEE QUA THE DEPARTMENTAL GROUNDS AND GROUNDS OF THE ASSESSEE WHEREIN SUBMISSION ON BEHALF OF THE REVENUE HAVE ALREADY BEEN ADDRESSED IN THE EA RLIER PART OF THIS ORDER. WE ARE THE VIEW THAT GROUND NO. 1, 2 & 3 IN THE APPEALS OF THE ASSESSEE DESERVES TO BE DISM ISSED AS THE SAME HAVE NOT BEEN ADDRESSED IN THE WRITTEN SUBMISSION AND IT IS PRESUMED THAT THE ASSESSEE HAS NOTHING TO SAY. THE FINDING OF THE CIT(A) REPRODUCED IN THE EARLIER PART OF THIS ORDER AS SUCH ARE CONFIRMED. QUA THE GROUNDS 4, 5 & 6 OF THE ASSESSEE AND DEPARTMENTAL GR OUNDS 1 & 2, THE FINDINGS ARRIVED AT IN PARA 6. 6, THE SAME IS MODIFI ED AND THE ISSUE IS RESTORED TO THE FILE OF THE AO WITH THE DIRECTION TO ADDRESS THE SPECIFIC PROVISIONS TO THE EXTENT THAT THE AO SHALL LOOK INTO THE SPECIFIC RULES AND SECTIONS WHICH THE ASSESSEE WANTS THE CANVASS IN SUPPORT IT S CLAIM FOR THE SAID PURPOSE, ASSESSEE HAS RELIED ON THE ORDER OF CO ORDINATE BENCH IN ITA NO.154/DEL/2008 IN THE CASE OF CIT VS N.S. COMMITTEE, VILLAGE THANABHAWAN, TE HSIL SHAMLI, DISTT. MUZAFFARNAGAR WHEREIN THE DEPARTMENTAL GROUNDS AGITATING THE ISSUE OF ANSHDAN AND NI RMAN YOGNA FUND HAS TAKEN A VIEW IN PARA 6 WHICH READS AS UNDER :- WE HAVE HEARD THE LD. DR A ND GONE THROUGH FACTS ON THE CASE INDISPUTABLY, THE ANSH DA N AND FUND FOR NI RMAN YOJNA, WHERE GIVEN TO THE ASSESSEE BY THE STATE GOVE RNMENT & SUGAR FACTORIES FOR SPECIFIC PROJECTS OF THE ROAD CONSTRUCTION AND AS POINTED OUT BY THE LD.CIT(A) THIS FUNDS HAVE BEEN SPEND ALSO FOR THOSE SPECIFIC PROJECT. THERE IS NOTHING TO SUGGEST THAT THE ASSESSEE IS CARRYING ON ANY BUS INESS ACTIVITIES, GENERATING INCOME. ACCORDINGLY, THE LD. CI T(A) CONCLUDED THAT THERE WAS NO SURPLUS WITH THE ASSESSEE AND THEREFORE, THERE WAS NO QUESTION OF ANY TAXABLE INCOME. ADMITTEDLY, THE GRANT-IN-AID IN QUESTION IS A FINANCIAL AID OR SUBSIDY GIVEN BY THE STATE GOVERNMENT OF UP AND SUGAR FACT ORIES FOR THE SPECIFIC PURPOSE OF CONSTRUCTION OF ROADS. IN SECTION 2 (24) OF THE ACT, IT IS DECLARED THAT INCOME INCLUDE S VARIOUS ITEMS WHICH ARE ENUMERATED THEREIN IN CLAUSES (I ) TO (XV). IN THE SAID SECTION 2(24), SUCH A GRANT-IN-AID HAS NOT BEEN SPECIFICALLY INCLUDED AS AN INCOME OR A REVENUE RECEIPT. THEREFORE, CONSIDERING THE USE FOR THE WORK INCLUDE IN SECTIO N 2(24), THE WORD INCOME SHALL BE CONSTRUED AS COMPREHENDING NOT ONLY THOSE ITEMS WHICH SAID SECTION DECLARED THAT THES E SHALL INCLUDE BUT ALSO SUCH ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 7 ITEMS WHICH SAID SECTION DECLARES THAT THESE SHALL INCLUDE BUT ALSO SUCH ITEMS AS IT SIGNIFIED ACCORDING TO ITS NATURAL IMPORT. SINCE SECTION 2(24) HAS NOT DECL ARED THAT SUCH A GRANT-IN-AID SHALL BE INCLUDED IN THE INCOME THE WORD REVENUE SHALL BE CONSTRUED AS COMPREHENDING WHAT IT SIGNIFIED ACCORDING TO ITS NATURAL IMPORT. IN RELATION TO A BUSINESS UNDERTAKING, THE WORD REVENUE CONNOTES INCOMINGS OF THE UNDERTAKING WHICH ARE PRODUCTS OF THE NORMAL WORKING OF THE UNDERTAKING. THE GIVING OF FINANCIAL AID OR SUBSIDY TO THE AFORESAID COMMITTEE, WHICH ADMITTEDLY IS NOT CARRYING ON ANY BUSINESS, IS AT THE DISCRETION OF THE GOVERNMENT OR SUGAR FACT ORS. THUS, THE GRANT-IN-AID IN QUESTION WAS NOT A PRODUCT OF THE NORMAL BUSINESS ACTIVITIES OF THE ASSESSEE COMMITTEE, ASSE SSED BY THE AO AS A LOCAL AUTHORITY. THEREFORE, SUCH A GR ANT-IN-AID COULD NOT BE TERMED AS A REVENUE RECEIPT SO AS TO FO RM PART OF THE TOTAL INCOME. AS ALREADY POINTED OUT, THE LD CIT( A) CONCLUDED THAT THE AFORESAID FUNDS RECEIVED BY THE ASSESSEE FROM STATE GOVERNMENT AND SUGAR FACTORIES HAVE BEEN SP END ONLY FOR THOSE SPECIFIC PROJECTS AND THERE WAS NO SURPLU S WITH THE ASSESSEE. SINCE THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL, CONTROVERTING THESE FINDINGS OF FACTS RECORDED BY THE LD. CIT(A) SO AS TO ENABLE US TO TAKE A DIFFERENT VI EW IN THE MATTER, THERE IS NO BASIS TO INTERFERE WITH HIS FIND INGS. CONSEQUENT LY, GROUND NO. 1 TO 3 IN THE APPEAL IS DISMISSED. ACCORDINGLY THE AO SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW QUA GROUND NO-4, 5 & 6 OF THE ASSESSEE AND GROUND NO -W & 2 OF THE REVENUE IN LINE WITH THE ORDER OF THE CO-ORDINAT E BENCH. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE AFFORDING A REASONABLE OP PORTUNITY OF BEING HEARD. 12. IN THE CASE OF CIT VS U. P. UPBHOKTA SAHKARISANGH LTD. (SUPRA), THE HONBLE ALLAHABAD HIGH COURT HAS HELD THAT WHERE THE AMOUNT WAS GIVEN BY THE STATE GOVERNMENT FOR SPECIFIC PURPOSE, IT DID NOT PARTAKE OF THE NATURE OF THE INCOME OF ASSESSEE. EVEN IF IT WAS TREATED AS AN INCOME, IT WOULD NOT BE LIABLE TO TAX AS IT WAS STATED THAT THERE WAS DIVERSION OF THE INCOME BY WAY OF OVERRIDING TITL ES ON THE SAID AMOUNT BY THE WAY OF CONDITION. 13. IN THE CASE OF DIT VS. SOCI ETY FOR DEVELOPMENT ALTERNATIVES IN ITA NOS.12 OF 2012 AND 18 OF 2012, THE HONBLE HIGH COURT OF DELHI HAS ALSO DEALT WITH SI MILAR ISSUE AND HAS HELD THAT WHERE ASSESSEE RECEIVED GRANTS FO R SPECIFIC PURPOSES FROM THE ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 8 GOVERNMENT, NON GOVERNMENT AND FOREIGN INSTITUTION ETC. AND THESE GRANTS WERE TO BE SPENT AS PER TERMS& CONDITIONS OF THE PROJECT GRANT AND THE AMOUNT R EMAINED UNSPENT AT THE END OF THE YEAR, GOT SPILLED OVER TO THE NEXT YEAR, IT WAS NOT AN INCOME OF THE ASSESSEE. 14. SIMILAR IS THE POSITION IN THE INSTANT CASE AS THE ASSESSEE HAS NO INDEPENDENT RIGHT TO USE THE GRANT IN A MANNER IN WHICH IT LIKES. IT HAS TO BE UT ILIZED FOR A PARTICULAR PURPOSE IN TERMS OF GRANTS. SINCE THESE AR GUMENTS ARE RAISED FIRST TIME BEFORE THE TRIBUNAL, WE ARE OF TH E VIEW THAT THIS ASPECT SHOULD BE EXAMINED BY THE ASSESSI NG OFFICER WHILE ASSESSING THE INCOME OF THE ASSESSEE. ACCORDIN GLY, WE SET ASIDE THE ORDER OF THE CIT(A) & RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO THE REEXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE NEW ARGUMENT. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 3. SINCE THE TRIBUNAL, ON IDENTICAL ISSUE, HA S RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFI CER IN THE IMMEDIATELY PRECEDING YEAR, WE FIND NO JUSTIFICATION TO TAKE A CONTRARY VIEW IN THIS APPEAL AND WE ACCORDINGLY SET ASIDE TH E ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE- EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE ARGUMENTS RAISED BY THE ASSESSEE IN TERMS I NDICATED IN THE AFORESAID ORDER OF THE TRIBUNAL. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. SINCE THE TRIBUNAL IN THE CASE OF THE SIMILAR ASSESSEE FOR ASSESSMENT YEAR 2009-10 AND 2010-11 HA S RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE-E XAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE ARGUMENTS IT MADE BEFORE THE TRIBUNAL, LIKEWISE WE WOULD LIKE THE ASSESSING OFFICER TO RE -EXAMINE THE CLAI M OF THE ASSESSEE AND EXAMINE THE SAME ALONG WITH TH E GROUNDS THAT THE REVENUE HAS RAISED IN THIS APPEAL VIS--VIS THE ARGUMENT OF THE ASSESSEE THAT IT HAS ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 9 NO INDEPENDENT RIGHT TO USE THE GRANT IN A MANNER IN WHICH IT LIKES AND IT HAS TO BE UTILIZED FOR A PA RTICULAR PURPOSE IN TERMS OF GRANTS TAKING INTO CONSIDERATION THE JURISDICTIONAL HIGH COURT ORDER IN CIT VS U.P. UPBHOKTA SAHKARISANGH LTD. (SUPRA) AND THE HO N'BLE DELHI HIGH COURT IN DIT VS. SOCIETY FOR DEVELOPMENT ALTERNATIVES (SUPRA) AND THE ORDER OF THE TRIBUNAL (SUPRA). WE ARE OF TH E VIEW THAT SINCE THE TRIBUNAL HAS RESTORED THE MATTER IN IDENTICAL CASES RELATING TO ASSESSMENT YEARS 2009- 10 AND 2010-11 ON SIMILAR ISSUES, TO THE FILE OF THE ASSESSING OFFICER, RESPECTFULLY FOLLOWING THE SAME, WE SE T ASIDE THE ORDERS OF THE LD. CIT(A) FOR THE IMPUGNED ASSESSMENT YEARS AND RE STORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE CLAIM OF THE ASSESSEE. WHILE DOING SO, THE REVENUES GR OUNDS/CONTENTION ALSO NEEDS TO BE ADDRESSED WHILE ADJUDICATING THE CLAIM OF THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.7.2016. SD/- SD/- [P. K. BANSAL] [ABY T VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH JULY, 2016 JJ:2607 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR