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

ITA 362/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4144 (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: 2012-2013
• Appeal Filed On: 09-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; 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.362/LKW/2016 ASSESSMENT YEAR:2012-13 INCOME TAX OFFICER GONDA V. CANE DEVELOPMENT COUNCIL BALRAM P UR TAN/PAN:AAALK0802E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AMIT NIGAM, D.R. RES P ONDENT B Y : NONE DATE OF HEARIN G : 26 07 2016 DATE OF P RONOUNCEMENT: 29 07 2016 O R D E R PER ABY T VARKEY, J.M: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), FAIZABAD DATED 9. 3.2016 FOR THE ASSESSMENT YEAR 2012- 13. 2. THE GROUNDS RAISED BY TH E REVENUE ARE REPRODUCED HEREUNDER:- 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. 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 ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 2 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 8OP OF THE I.T. ACT I GNORING THE FACT THAT TH E 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 AL LOWABLE 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 DEDUCTIBL E U/S 8OP 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 SO CIETY LTD. IN (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 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. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, ON A PERUSAL OF RECORD, WE FIND THAT THE ISSUE INVOLVED IN THIS APPEAL IS ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 3 SQUARELY COVERED BY THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF ITO, GONDA VS. CANE DEVELOPMENT COUNCIL, BALRAMPUR IN ITA NO.360 & 361/LKW/2016 FOR THE ASSESSM ENT YEARS 2011-12 AND 2012-13 WHEREIN THE LUCKNOW BENCH OF THE TR IBUNAL HAS SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE MATTER AFRESH. THE RE LEVANT PORTION OF THE ORDER OF THE TRIBUNAL DATED 28.7.2016 IS REPRODUCED HEREUNDER:- 5. WE HAVE HEARD BOTH THE PART IES AND PERUSED THE RECORD. WE HAVE ALSO PERUSED THE ORDER OF THE TRIBUNAL IN SIMILAR CASE WHEREIN IDENTICAL ISSUE WAS EXAMIN ED BY THE TRI BUNAL, IN WHICH THE TRIBUNAL HAS RESTORED THE MATT ER TO THE FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE OBSERVATIONS MADE THEREIN. TH E RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDE R FOR THE SAKE OF REFERENCE:- 2. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY AN IDENTICAL ISSUE WAS EXAMINED BY THE TRIBUNAL IN THE ASSESSEES OW N CASE IN ASSESSMENT YEAR 2009-10, IN WHICH THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICE R. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 9. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND JUDGMENTS FILED BEFORE US IN THE LIGHT OF RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT SINCE THE ABOVE GRANTS OR RE CEIPTS ARE RECEIVED BY THE ASSESSEE EITHER FR OM THE GOVERNMENT OR ANY OTHER AGENCY FOR A PARTICULAR PU RPOSE AND ASSESSEE HAS NO INDEPENDENT RIGHT OVER IT, IT WOULD NOT PARTAKE THE CHARACTER OF INCOME U/S 2 (24) OF THE ACT. THOUGH, THIS ARGUMENT WAS NOT RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND THE A SSESSEE HAD BEEN CLAIMING DEDUCTION U/S 80P (2) OF THE ACT OR EXEMPTION U/S 11 OF THE ACT, BUT THE GROU ND OR ARGUMENT RAISED BEFORE US IS PLAUSIBLE AND LEGAL. THEREFOR E, 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 RECEIPT WHICH ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 4 WERE NOT PRODUCT OF NORMAL BUSINESS ACTI VITY OF THE ASSESSEE, IT COULD NOT BE TERM ED AS REVENUE RECEIPT, SO AS TO FORM PART OF THE TOTAL INCOME. 11. IN THE CASE OF ITO VS CANE DEVELOPMENT COUNCIL (SUPRA), THE SIMILAR ISSUE WAS RAISED ON SIMILAR FACTS AND FINDING FORCE IN THE CONTEN TION OF THE ASSESSEE, THE TRIBUNAL HAS RESTORED THE MA TTER TO THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE IN LIGHT OF THESE SUBMISSIONS. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS EXTRACTED AS UNDER :- 9. CONSIDERING THE WRITTEN SUBMISSIONS FILED BEFORE THE BENCH, IT WAS SEEN THAT ON BEHALF THE ASSESSEE IT HAS BEEN CANVASSED THAT THE ASSESSEE COMPANY HAS BEEN ESTABLISHED BY AN ORDER DATED 06.04.1989 PASSED BY THE CANE COMMISSI ONER 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 DI VISION OF THE U.P. STATE AND FORMATION OF UTTRAKHAND STATE LATER ON, THESE ACT AND RULES HAVE BEEN ADOP TED BY THE UTTRAKHAND STATE ALSO AS IT. THE FUNCTI ONING AND ACTIVITIES OF THE ASSESSEE ARE STATED TO BE GOVERNED BY THE PROVISIONS MADE UNDER THIS ACT AND RU LES. IT HAS ALSO BEEN SUBMITTED THAT AS PER SECTIO N 6 OF THE SAID ACT, THE FUNCTIONS OF THE ASSESSEEE AR E THAT IT CARRIES OUT ONLY THE DEVELOPMENT ACTIVITIES IN THE AREA ASSIGNED TO IT BY THE CANE COMMISSIONER OF THE STATE. IT WAS ALSO SUBMITTED IN THE WRITTEN SUBM ISSIONS THAT THERE IS NO PROVISION UNDER THE SAID-A CT/RULE AUTHORIZING THE APPELLANT TO DO ANY BUSINE SS ACTIVITY WITH PROFIT MOTIVE OR TO EARN ANY INCO ME/PROFIT AND THE APPELLANT CARRIES OUT THE DEVELOPMENT ACTIVITIES AS SPECIFIED UNDER AFORESAID ACT ON NO PR OFIT NO LOSS BASIS. THE APPELLANT IS MERELY A FUND MANAGEMENT BODY WITHOUT ANY RIGHT OF ABSOLUTE OWNERS HIP OVER THE FUNDS PLACED AT ITS DISPOSAL. IT IS FURTHER MENTIONED HERE THAT THE SAID ROADS, CULVERTS, ETC. ARE CONSTRUCTED BY THE APPELLANT ON THE LAND BELO NGING TO THE GOVT. AND CONSTRUCTIONS MADE BY THE APPELLANT THERE ON ALSO BELONGS TO THE GOVT. AS ABSO LUTE OWNER AND NOT TO THE APPELLANT OR ANYBODY ELSE. THE FUNDS RECE IVED BY THE ASSEESSEE ARE EITHER BY WAY OF (A) VOLUNTARY GRANT ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 5 FROM THE CENTRAL OR STATE GO VT. OR (B) CONTRIBUTION IN THE NAME OF COMMISSION FROM THE SUGAR MILLS, AS PROVIDED U/S 8 OF THE AFORESAID ACT. AS PER RULE 49 OF THE AFORESAID RULES, THIS CO NTRIBUTION 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 CA NE GROWERS ARE THE CANE GROVERS COOPERATIVE SOCIET Y. ADDRESSING 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 APPELLA NT TO THE SUGAR MILL NOR 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 RULE FOR IT, HENCE THE AMOUNT PAID BY THE SUGAR MILL TO THE APPELLANT THOUGHT IS IN THE NAME OF COMMISSION BUT, IN FACT, IT IS JUST A CONTRIBUTION AMOUNT. REFERRING TO THE MANDATORY PROVISION MADE UNDER RULE 49A, THE ENTI RE AMOUNT OF SAID COMMISSION, WHICH IS, IN FACT, JUST A CONTRIBUTION AMOUNT, IS REQUIRED TO BE UTILIZED ON SPECIFIC PURPOSE OF CONSTRUCTION OF ROAD ETC. AND OTHER DEVELOPMENT ACTIVITIES ARE ASSIGNED TO THE APPELLANT AND NOT OTHERWISE. IT IS FURTHER S UBMITTED 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 COMMISSION 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 CONTRIBU TION AMOUNT RECEIVED IN THE NAME OF COMMISSION TO AN YBODY NOT UTILIZED IT FOR ANY PURPOSE OTHER THAN THAT FOR WHICH IT HAS BEEN PAID TO THE APPELLANT. IT HA S ALSO STATED THAT THERE IS NO FINDING BY ANY LOWER AUTH ORITIES THAT THE ASSESSEE HAS UTILIZED THE COMMISSION AMOUNT FOR ANY PURPOSE SIMILARLY THE SURPLUS NOT SPEND IS FULLY COVERED BE THE ORDER OF THE DELHI BE NCH IN N.S. COMMITTEE, VILLAGE THANABHAWAN, TEHSIL SHAMIL, DISTT.- MUZAFFARNAGAR ORDER COPY FILED. 10. IN THE LIGHT OF WRITTE N SUBMISSIONS ADVANCED BY THE ASSESSEE QUA THE DEPA RTMENTAL GROUNDS AND GROUNDS OF THE ASSESSEE WHEREIN SUBMISSION ON BEHALF OF THE REVENUE HAVE ALREADY BEEN ADDRESSED IN ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 6 THE EARLIER PART OF THIS OR DER. WE ARE THE VIEW THAT GROUND NO. 1, 2 & 3 IN THE APPEALS OF THE ASSESSEE DESERVES TO BE DISMISSED 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) REPRODUC ED IN THE EAR LIER PART OF THIS ORDER AS SUCH ARE CONF IRMED. QUA THE GROUNDS 4, 5 & 6 OF THE ASSESSEE A ND DEPARTMENTAL GROUNDS 1 & 2, THE FINDINGS ARRIVED AT IN PARA 6.6, THE SAME IS MODIFIED AND THE ISSUE IS RE STORED TO THE FILE OF THE AO WITH THE DIRECTION TO ADDRESS THE SPECIFIC PROVISIONS TO THE EXTENT TH AT THE AO SHALL LOOK INTO THE SPECIFIC RULES AND SECTIONS WHICH THE ASSESSEE WANTS THE CANVASS IN SUPPORT ITS CL AIM 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, TEHSIL SHAMLI, DISTT. M UZAFFARNAGAR WHEREIN THE DEPARTMENTAL GROUNDS AGITAT ING THE ISSUE OF ANSHDAN AND NIRMAN YOGNA FUND HAS TAKEN A VIEW IN PARA 6 WHICH READS AS UNDER :- WE HAVE HEARD THE LD. DR AND GONE THROUGH FACTS ON THE CASE INDISPUTABLY, THE AN SH DAN AND FUND FOR NIRMAN YOJNA, WHERE GIVEN TO TH E ASSESSEE BY THE STATE GOVERNMENT & SUGAR FACTORIES FO R SPECIFIC PROJECTS OF THE ROAD CONSTRUCTION AND AS PO INTED OUT BY THE LD.CIT(A) THIS FUNDS HAVE BEEN SPEN D ALSO FOR THOSE SPECIFIC PROJECT. THERE IS NOTHING TO SUGGEST THAT THE ASSESSEE IS CARRYING ON ANY BUSINESS ACTI VITIES, GENERATING INCOME. ACCORDINGLY, THE LD. CIT(A) CONCLUDED THAT THERE WAS NO SURPLUS WITH THE ASSESSEE AN D THEREFORE, THERE WAS NO QUESTION OF ANY TAXABLE INCO ME. ADMITTEDLY, THE GRANT- IN-AID IN QUESTION IS A FINA NCIAL AID OR SUBSIDY GIVEN BY THE STATE GOVERNMENT OF UP AND SUGAR FACTORIES FOR THE SPECIFIC PURPOSE OF CONSTRUCTI ON OF ROADS. IN SECTION 2 (24) OF THE ACT, IT IS DECL ARED THAT INCOME INCLUDES VARIOUS ITEMS WHICH ARE ENUM ERATED THEREIN IN CLAUSES (I) TO (XV). IN THE SAID SECT ION 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 SECTION 2( 24), THE WORD INCOME SHALL BE CONSTRUED AS COMPREHEND ING NOT ONLY THOSE ITEMS WHICH SAID SECTION DECLARED THAT THESE SHALL INCLUDE BUT ALSO SUCH ITEMS WHICH SAID SECTION DECLARES THAT THESE ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 7 SHALL INCLUDE BUT ALSO SUCH IT EMS AS IT SIGNIFIED ACCORDING TO ITS NATURAL IMPORT. SI NCE SECTION 2(24) HAS NOT DECLARED THAT SUCH A GRANT-IN-A ID 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 FACTORS. THUS, THE GRANT-IN-AID IN QUESTION WAS NOT A PRODUCT OF THE NORMAL BUSINE SS ACTIVITIES OF THE ASSESSEE COMMITTEE, ASSESSED 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 FORM 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 SPEND ONLY FOR THOSE SPECIFIC PROJECTS AND THERE WAS NO SURPLUS WITH THE ASSESSEE. SINCE THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL, CONTROVERT ING THESE FINDINGS OF FACTS RECORDED BY THE LD. CIT(A) SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER, TH ERE IS NO BASIS TO INTERFERE WITH HIS FINDINGS. CONSEQUENT LY, GROUND NO. 1 TO 3 IN THE APPEAL IS DISMISSED. ACCO RDINGLY 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 -ORDINATE BENCH. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE AFFORDING A REASONABLE OPPORTUNITY 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 WOUL D NOT BE LIABLE TO TAX AS IT WAS STATED THAT THERE WAS DI VERSION OF THE INCOME BY WAY OF OVERRIDING TITLES ON THE SAID AMOUNT BY THE WAY OF CONDITION. 13. IN THE CASE OF DIT VS. SOCIETY FOR DEVELOPMENT ALTERNATIVES IN ITA NOS.12 OF 2012 AND 18 OF 2012, THE HONBLE HIGH COURT OF DELHI HA S ALSO DEALT WITH SIMILAR ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 8 ISSUE AND HAS HELD THAT WHER E ASSESSEE RECEIVED GRANTS FOR SPECIFIC PURPOSES FROM THE GOVERNMENT, NON GOVERNMENT AND FOREIGN INSTIT UTION ETC. AND THESE GRANTS WERE TO BE SPENT AS PER TERM S& CONDITIONS OF THE PROJECT GRANT AND THE AMOUNT REMAINED 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 RI GHT TO USE THE GRANT IN A MANNER IN WHICH IT LIKES. IT HAS TO BE UTILIZED FOR A PARTICULAR PURPOSE IN TERM S OF GRANTS. SINCE THESE ARGUMENTS ARE RAISED FIRST TI ME BEFORE THE TRIBUNAL, WE ARE OF THE VIEW THAT THIS AS PECT SHOULD BE EXAMINED BY THE ASSESSING OFFICER WHILE A SSESSING THE INCOME OF THE ASSESSEE. ACCORDINGLY, 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 ID ENTICAL ISSUE, HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER IN THE IMMEDIATELY PRECEDING YEAR, WE FIND NO JUSTIFICATION TO TAKE A CONTRARY VIEW IN THIS APPEAL AND WE ACCORDINGLY SET ASIDE THE 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 TH E ARGUMENTS RAISED BY THE ASSESSEE IN TERMS INDICATED 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 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE AR GUMENTS IT MADE BEFORE THE TRIBUNAL, LIKEWISE WE WOULD LIKE THE ASSESSING OFFICER TO RE- EXAMINE THE CLAIM OF THE ASSE SSEE AND EXAMINE THE SAME ALONG WITH THE GROUNDS THAT THE REVENUE HAS RAISED IN THIS APPEAL VIS-- VIS THE ARGUMENT OF THE ASSESSEE TH AT IT HAS NO IN DEPENDENT RIGHT ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 9 TO USE THE GRANT IN A MANNER IN WHICH IT LIKES AND IT HAS TO BE UTILIZED FOR A PARTICULAR PURPOSE IN TERMS OF GRANTS TAKING INTO CONSIDERATION THE JURISDICTIONAL HI GH COURT ORDER IN CIT VS U.P. UPBHOKTA SAHKARISANGH LTD. (S UPRA) AND THE HON'BLE DELHI HIGH COURT IN DIT VS. SOCIETY FOR DEVE LOPMENT ALTERNATIVES (SUPRA) AND THE ORDER OF THE TRIBUNAL (SUPRA). WE ARE OF THE 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, RE SPECTFULLY FOLLOW ING THE SAME, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) FOR THE IMPUGNED ASSESSMENT YEARS AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO RE -EXAMINE THE CLAIM OF THE ASSESSEE. WHILE DOING SO THE REVENUES GROUNDS/ CONTENTION ALSO NEED 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. 5. RESPECTFULLY FOLLOWING TH E ORDER OF THE TRIBUNAL DATED 28.7.2016, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF TH E ASSESSING OFFICER TO RE-E XAMINE THE CL AIM OF THE ASSESSEE AND ADDRESS THE GROUNDS RAIS ED BY REVENUE BE FORE US WHILE DE-NOVO ASSESSMENT IS CARRIE D OUT AGAINST THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.7.2016. SD/- SD/- [P. K. BANSAL] [ABY T VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JULY, 2016 JJ:2807 ITA NO.360 & 361/LKW/2016, A.Y. 2011-12 & 2012-13 10 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR