ADIT (E), New Delhi V. Indian Evangelical Team, New Delhi

ITA 3635/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65320 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RIS GILL
• Assessee Lawyers: GEORGE KOSHIAR
• Keywords: Question of law
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BENC H BEFORE SHRI A.N. PAHUJA, AM & SHRI C.M. GARG, JM ITA NO.3635 /DEL/2012 ASSESSMENT YEAR: 2009-10 ADIT (E)TC-II, NEW DELHI V/S . INDIAN EVANGELICAL TEAM 126, ANDHERIA MODH, CHHATTARPUR, MEHRAULI, NEW DELHI [PAN : AAATI 0283 M ) (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI GEORGE KOSHI,AR REVENUE BY SHRI R.I.S. GILL, DR DATE OF HEARING 11-09-2012 DATE OF PRONOUNCEMENT 11-09-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 11.07.2012 BY THE REVENUE AGAI NST AN ORDER DATED 02.04.2012 OF THE LEARNED CIT(A)-XXI, NEW DEL HI, RAISES THE FOLLOWING GROUNDS:- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND FIN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING EXEMPTION U/S 11 OF THE INCOME-TAX ACT, 1961 WHICH WAS DENIED BY THE ASSESSING OFFICER BECAUSE THE ASSESSE E SOCIETY IS SET UP FOR RELIGIOUS ACTIVITIES WHILE CL AIMING CHARITABLE STATUS WHICH IS CLEAR VIOLATION OF SECTI ON 13(1)(B) OF THE INCOME-TAX ACT, 1961. 2. THE APPELLANT CRAVES TO ADD, TO ALTER OR AMEND A NY GROUND OF THE APPEAL RAISED ABOVE AT THE TIME OF HE ARING. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE T HAT RETURN DECLARING NIL INCOME FILED ON 22.09.2009 BY THE ASSESSEE, A SOCIETY REGI STERED U/S 12A OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE ORDER DATED 13.01.1977, ITA N O.3635 /DEL./2012 2 WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NO TICE U/S 143(2) OF THE ACT ISSUED ON 14.09.2010.DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE ASSESSING OFFICER (A.O. IN SHORT), ON PERUSAL OF TH E MEMORANDUM OF ASSOCIATION OF THE SOCIETY NOTICED THAT THE PREAMBLE READS AS U NDER; THIS IS A CHARITABLE SOCIETY FOR THE FELLOWSHIP OF FULL GOSPEL PREACHING CHRISTIAN WORKERS FORMED FOR THE SPIRITUAL UNITY, ESTABLISHIN G WORSHIPPING CENTRES, SOCIAL INSTITUTIONS AND TO STRENGTHEN MUTUAL CO-OPERATION FOR THE EVANGELIZATION OF NORTH- INDIA. 2.1 IN THE LIGHT OF AFORESAID OBJECTS, THE AO WA S OF THE OPINION THAT THE ACTIVITIES OF THE SOCIETY WERE GEARED FOR THE BENEFIT OF CHRIS TIAN RELIGION, IN VIOLATION OF PROVISIONS OF SECTION 13(1)(B) OF THE ACT. IN RES PONSE TO THE SHOW CAUSE NOTICE ISSUED BY THE AO, THE ASSESSEE REPLIED THAT THE AO, IN THE ASSESSMENT ORDERS FOR THE AYS 1989-90 TO 1991-92, HIMSELF ALLOWED EXEMPT ION U/S 11 OF THE ACT WHILE IN AYS 1992-93 TO 1994-95,2005-06 & 2007-08, THE CI T(A) CONCLUDED THAT THE ASSESSEE WAS ENTITLED TO EXEMPTION U/S 11 OF THE AC T. ACCORDINGLY, WHILE REFERRING TO THE PRINCIPLES OF CONSISTENCY, THE ASSESSEE SOUG HT EXEMPTION U/S 11 OF THE ACT HOWEVER, THE AO DID NOT ACCEPT THE SUBMISSIONS OF T HE ASSESSEE AND WHILE REFERRING TO FINDINGS IN THE ASSESSMENT ORDER FOR THE AY 2008-09 CONCLUDED THAT THE OBJECTS OF THE SOCIETY WERE ADMIXTURE OF RELIGI OUS AND OTHER OBJECTS, FALLING WITHIN THE MISCHIEF OF PROVISIONS OF SEC. 13(1)(B) THE ACT. ACCORDINGLY, WHILE REFERRING TO DECISIONS IN STATE OF KERALA VS. M.P. SHANTI VERMA JAIN (1998) 231 ITR 787 (SC) & GHULAM MOHIDIN TRUST VS. CIT (2000) 248 ITR 587 (J&K), THE AO DETERMINED TAXABLE INCOME OF ` ` 7,70,53,376/-. 3. ON APPEAL, THE LD. CIT(A) ,FOLLOWING THE DEC ISION OF THE ITAT IN THE ASSESSEES OWN CASE FOR THE AY 2008-09 ALLOWED THE CLAIM OF THE ASSESSEE IN THE FOLLOWING TERMS:- 2.2 I HAVE GONE THROUGH THE ORDER OF AO AND WRITTE N SUBMISSION OF THE LD. AR IN THIS REGARD, THE HON'BLE TRIBUNAL IN ITS LATEST ORDER FOR A.YR.2008-09 IN APPELLANT'S OWN CASE HAS DECIDED TH E ISSUE IN FAVOUR OF THE APPELLANT FOLLOWING THE DECISION TAKE N FOR A.Y.2005-06 ITA N O.3635 /DEL./2012 3 IN APPELLANT'S OWN CASE BY ITAT, THE RELEVANT PARA NO.6 & 7 ARE REPRODUCED AS UNDER:- '6. AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE ITAT , DELHI BENCH 'C', NEW DELHI IN THE ASSESSEE'S CASE FOR THE ASSES SMENT YEAR 2005- 06 AFTER FOLLOWING THE EARLIER DECISIONS OF THE APP ELLATE TRIBUNAL PASSED IN ASSESSMENT YEARS 1992-93, 1993-94 AND 199 4-95. THE OPERATIVE PORTION OF THE TRIBUNAL'S ORDER DATED 18. 06.2009 PASSED IN ASSESSMENT YEAR 2005-06 IN ITA NO.45/DEL/20-09, IS AS UNDER:- 3. WE HAVE CONSIDERED THE CONTENTION OF THE LEARNED DR AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM THE RECORD THAT FOR AY 1992-93 , 93-94 AND 94-95 THE AO HELD THAT THE ASSESSEE WAS A RELIGIOUS SOCIETY AND THEREFORE, WAS NOT ELIGIBLE F OR THE TAX EXEMPTION CONTAINED IN SECTION 11 OF THE ACT. O N APPEAL, THE CIT(A) VIDE HIS ORDERS DATED 2.8.1993 F OR AY 1992-93, 12.6.1996 FOR AY 1993-94 AND 21. 7.1997 FO R AY 1994-95 HELD THAT THE ASSESSEE WAS ENTITLED TO TAX EXEMPTION U/S.11 OF THE ACT. ON SECOND APPEAL BY TH E DEPARTMENT FOR AY 1992-93, 1993-94 AND 1994-95, THE ITAT CONFIRMED THE ORDER OF THE CIT(A) VIDE ORDERS DATED 9,4.2001 FOR AY 1992-93, 16,1.2002 FOR AY 199 3-94 AND 13.9.2002 FOR AY 1994-95 AND ALLOWED TAX EXEMPTION UNDER SECTION 11 TO THE ASSESSEE. DURING THE YEAR ALSO, THE AO HAS DENIED EXEMPTION ONLY ON THE GROUND THAT IT IS A RELIGIOUS SOCIETY. AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION A RE IN PARI-MATERIA WITH THE FACTS DISCUSSED BY THE TRI BUNAL IN ITS ORDER DATED 9.4.2011 FOR, AY 1992-93, 16.1.2 002 FOR AY 1993-94 AND 13.9.2002 FOR AY 1994-95, RESPECTFUL LY FOLLOWING THE SAME, WE DO NOT FIND ANY INFIRMITY TH E ORDER OF THE CIT(A). THE ASSESSING OFFICER HAS ALSO STATED IN HIS ORDER THAT IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL BUT THE DEPARTMENT HAS FIELD AN APPEAL BEFORE THE HON'BLE H IGH COURT, HENCE THE MATTER IS PENDING ADJUDICATION. HOWEVER, THE FACT EMERGES THAT AS THE POSITION STANDS TODAY, THE MATT ER HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL, WHICH IS TO BE FOLLOWING IN THE PRESENT ASSESSMENT YEAR. ITA N O.3635 /DEL./2012 4 7. RESPECTFULLY FOLLOWING THE AFORESAID TRIBUNALS ORDER PASSED IN ASSESSMENT YEAR 2005-06, WE ARE INCLINED TO UPHOLD THE ORDER OF THE LEARNED CIT(A) IN GRANTING EXEMPTION U /S 11 OF THE ACT. THUS, THE ORDER OF THE LEARNED CIT(A) IS UPHEL D. 2.3 AS FACTS OF THE CASE ARE IDENTICAL AND ISSUE I S COVERED BY THE DECISION OF THE HONBLE ITAT AS DISC USSED ABOVE, GROUND NOS.2 TO 5 ARE ALLOWED. 4. THE REVENUE IS NOW IN APPEAL BEFORE US AG AINST THE AFORESAID FINDINGS OF THE LD. CIT(A).THE LD. DR SUPPORTED THE ORDER OF TH E AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE RELIED UPON THE FINDINGS OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND GONE TH ROUGH THE FACTS OF THE CASE. WE FIND THAT THE AO HIMSELF ACCEPTED THE CLAIM OF T HE ASSESSEE FOR EXEMPTION U/S 11 OF THE ACT IN THE AYS 1989-90 TO 1991-92,199 5-96 TO 2004-05 &2006-07 IN IDENTICAL CIRCUMSTANCES. IN THE AY 1992-93, THOUGH A SIMILAR CLAIM FOR EXEMPTION WAS DISALLOWED, THE LD. CIT(A) ALLOWED THE CLAIM AN D THE ITAT UPHELD THE FINDINGS OF THE LD. CIT(A). ON FURTHER APPEAL, THE QUESTION OF LAW FORMULATED BY HONBLE HIGH COURT IS STATED TO BE PENDING IN I.T.A. NO. 6 /2002. IN THE AY 1993-94, AO REJECTED THE CLAIM AND APPEAL IS STATED TO BE PENDI NG IN I.T.A. NO.216/2002. FOR THE AY 1994-95, THE ITAT UPHELD THE FINDINGS OF THE LD. CIT(A), ALLOWING THE CLAIM FOR EXEMPTION U/S 11 OF THE ACT AND THE APPEAL FILE D BEFORE THE HONBLE HIGH COURT IS STATED TO BE PENDING ADMISSION. IN AY 20 05-06, THE AO AGAIN DENIED EXEMPTION FOR VIOLATION U/S13(1)(B) OF THE ACT. HO WEVER, ON APPEAL, THE LD. CIT(A) ALLOWED THE CLAIM AND THE ITAT UPHELD THE FINDINGS OF THE LD.CIT(A) VIDE THEIR ORDER DATED 18 TH JUNE, 2009 IN I.T.A. NO.45/DEL./09. IN THE AYS 20 07-08 & 2008- 09, THOUGH THE AO DENIED EXEMPTION U/S 11 OF THE AC T ,THE LD CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE IN THE AY 2007-08 AND THE FAT E IN FURTHER APPEAL IS NOT KNOWN WHILE IN THE AY 2008-09, THE ITAT VIDE THEIR ORDER DATED 26 TH DECEMBER, 2011 IN I.T.A. NO.4671/DEL./2011 UPHELD THE FINDING S OF LD. CIT(A), GRANTING EXEMPTION U/S 11 OF THE ACT. THE LD. CIT(A) IN THE IMPUGNED ORDER FOLLOWED THIS ORDER OF THE ITAT FOR THE AY 2008-09 IN ALLOWING EX EMPTION U/S 11 OF THE ACT. IN ITA N O.3635 /DEL./2012 5 VIEW OF THE FOREGOING, ESPECIALLY WHEN THE REVENU E HAVE NOT PLACED ANY MATERIAL BEFORE US, CONTROVERTING THE AFORESAID FIN DINGS OF THE LD. CIT(A) NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECISION, SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER WHILE CLAIM OF THE ASSESSEE FOR EXEMPTION HAS CONSISTENTLY BEEN ALLOWED IN THE PRECEDING YEARS, WE ARE NOT INC LINED TO INTERFERE. CONSEQUENTLY, GROUND NO.1 IN THE APPEAL IS DISMISSE D. 6.. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFOR E US IN TERMS OF RESIDUARY GROUND NO.2 IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 7. IN RESULT, APPEAL IS DISMISSED. SD/- SD/- (C.M. GARG) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. ADIT (E)TC-II, NEW DELHI 3. DIT(E),NEW DELHI 4. CIT (A)-XXI, NEW DELHI 5. DR, ITAT,C BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT