ITO (Exemptions), New Delhi V. M/s. Indian Islamic Cultural Centre, New Delhi

ITA 3636/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7394 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 04-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G JOHNSON
• Keywords: Charitable institution; Benefit of exemption
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D.AGRAWAL, HONBLE VICE PRES IDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.-3636/DEL/2015 ( ASSESSMENT YEAR: 2010-11) ITO (EXEMPTION) WARD-1(2), ROOM NO. 2417, 24 TH FLOOR, E-2-BLOCK, PRATYAKSH KAR BHAWAN, DR. SHYAMA PRASAD MUKHERJEE CIVIC CENTRE, JAWAHAR LAL NEHRU MARG NEW DELHI VS . INDIAN ISLAMIC CULTURAL CENTRE OPP. MAUSAM BHAWAN, 87-88, LODHI ESTATE NEW DELHI PAN : AAATI2770F APPELLANT RESPONDENT ASSESSEE BY: SH. SATYAJEET GOEL , CA REVENUE BY: SHRI G JOHNSON, SR.DR ORDER PER SUDHANSHU SRIVASTAVA, J.M.: THIS APPEAL IS PREFERRED BY THE DEPARTMENT AGAINST ORDER PASSED BY THE LD. CIT (APPEALS) - 40, NEW DELHI FOR ASSESSMENT YEAR 2010-11 WHEREIN LD. CIT (APPEALS) H AS HELD THAT THE RESTAURANT/COFFEE SHOP RUN BY THE ASSESSEE SOCIETY IN THE PREMISES OF THE ASSESSEE DOES NOT TANTAMOUNT TO ASSESSEE BEING INVOLVED IN TRADE, COMMERCE OR BUSINESS. DATE OF HEARING 11.10.2018 DATE OF PRONOUNCEMENT 09.01.2019 2 ITA N O. 3636/DEL/2015 (INDIA ISLAMIC CULTURAL CENTRE) 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860 AND IS A LSO REGISTERED U/S 12AA OF THE INCOME TAX ACT 1961 (HER EINAFTER CALLED THE ACT). THE ASSESSEE ALSO ENJOYS BENEFIT OF SECTION 80G. THE MAIN OBJECT OF THE ASSESSEE IS TO PROMOTE INDIAN ART AND CULTURE AND COMMUNAL HARMONY ETC. THE ASSESSEE HAD BEEN ENJOYING EXEMPTION U/S 11(1) SINCE THE GRANT O F REGISTRATION U/S 12AA W.E.F. 1982. HOWEVER, THIS EX EMPTION WAS DENIED FOR THE FIRST TIME IN ASSESSMENT YEAR 20 09-10 BY INVOKING THE MISCHIEF OF PROVISO TO SECTION 2(15) O N THE GROUND THAT ASSESSEE WAS INVOLVED IN TRADE, COMMERCE OR BU SINESS AS THERE WAS A RESTAURANT RUN BY SALEEM RESTAURANT PVT . LTD. IN THE NAME OF DILLI DASTARKHAN IN THE PREMISES OF THE ASSESSEE AND THE ASSESSEE WAS RECEIVING INCOME FROM THE REST AURANT. THE ASSESSEES APPEAL AGAINST THE DENIAL OF EXEMPTI ON WAS ALLOWED BY THE LD. CIT (APPEALS)-21, NEW DELHI VIDE ORDER DATED 30.05.2012 AND THE DEPARTMENTS APPEAL AGAINS T THE ORDER OF LD. CIT (APPEALS) FOR ASSESSMENT YEAR 2009 -10 WAS DISMISSED BY THE ITAT VIDE ORDER DATED 30.07.2014 I N ITA NO. 4127/DEL/2012. A SIMILAR VIEW WAS TAKEN BY THE AO B Y DENYING EXEMPTION U/S 11(1) IN ASSESSMENT YEAR 2011 -12 ALSO AND HERE ALSO THE LD. CIT (APPEALS) ALLOWED THE ASS ESSEES 3 ITA N O. 3636/DEL/2015 (INDIA ISLAMIC CULTURAL CENTRE) APPEAL AND THE DEPARTMENTS APPEAL WAS DISMISSED BY THE ITAT VIDE ORDER DATED 22.01.2018 IN ITA NO. 4443/DE L/2015. 2.1 DURING ASSESSMENT YEAR 2010-11, I.E. PRESENT YEAR, THE AO HAD AGAIN INVOKED THE MISCHIEF OF PROVISO TO SEC TION 2(15) AND AGAIN DENIED THE BENEFIT OF EXEMPTION U/S 11(1) . THE ASSESSEES APPEAL WAS ALLOWED BY THE LD. CIT (APPEA LS)-40 VIDE THE IMPUGNED ORDER AND THE DEPARTMENT IS NOW BEFORE THE ITAT CHALLENGING THE ACTION OF THE LD. CIT (APPEALS ). 3. THE LD. SR. DEPARTMENTAL REPRESENTATIVE PLACED R ELIANCE ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED TH AT THE PRINCIPLE OF RES JUDICATA WERE NOT APPLICABLE IN THIS CASE AS EACH ASSESSMENT YEAR IS A SEPARATE ASSESSMENT YEAR FOR THE PURPOSES OF LEVY OF INCOME TAX. 4. THE LD. AUTHORISED REPRESENTATIVE FILED COPIES O F THE ITAT ORDERS IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2009-10 AND 2011-12 AND SUBMITTED THAT THERE WAS NO CHANGE IN THE FACTS AND CIRCUMSTANCES IN THIS YEAR AS COMPARED TO ASSESSMENT YEARS 2009-10 AND 2011-12 AND, THEREFORE , THE REVENUES APPEAL DESERVED TO BE DISMISSED. 5. WE HAVE HEARD THE RIVAL SUBMISSIOSN AND HAVE ALS O PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ISSUE IS S QUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE EARLIER OR DERS OF THE 4 ITA N O. 3636/DEL/2015 (INDIA ISLAMIC CULTURAL CENTRE) TRIBUNAL FOR ASSESSMENT YEAR 2009-10 AND 2011-12 IN ASSESSEES OWN CASE AS AFOREMENTIONED AS THE DEPART MENT COULD NOT POINT OUT ANY DISTINGUISHING REASON OR CH ANGE IN THE FACTS OF THE PRESENT YEAR AS COMPARED TO ASSESSMENT YEARS 2009-10 AND 2011-12. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS NOT GENERATED ANY PROFIT FROM ITS ACTIVITIES AS A CHARITABLE INSTITUTION AND IT IS ALSO NOT IN DISPUTE THAT THE AIMS AND OBJECTS OF THE SOCIETY ARE OBJECTS OF GENERAL PUBLI C UTILITY INASMUCH AS THE ATTEMPT TO PROMOTE UNDERSTANDING AM ONGST VARIOUS SECTIONS OF THE SOCIETY AND ESTABLISH COMMU NAL HARMONY ARE ITS OBJECTS. IT IS ALSO A MATTER OF FAC T THAT THE FACILITIES OF THE RESTAURANT/CAFETARIA ARE PROVIDED FOR THE MEMBERS OF THE ASSESSEE SOCIETY AND THE SURPLUS SO GENERATED IS UTILIZED FOR ACHIEVING THE AIMS AND OBJECTS OF T HE SOCIETY AND DOES NOT GET DISTRIBUTED AMONGST THE MEMBERS. THE A SSESSEE SOCIETY CONTINUES TO ENJOY REGISTRATION U/S 12AA OF THE ACT AS WELL AS THE APPROVAL U/S 80G AND THE DEPARTMENT HAS NOT MADE ANY ATTEMPT TO CANCEL THE SAID REGISTRATION. T HUS, THERE BEING NO CHANGE IN THE FACTS OF THE CASE, RESPECTFU LLY FOLLOWING THE ORDERS OF THE ITAT IN ASSESSEES OWN CASE FOR A SSESSMENT YEARS 2009-10 AND 2011-12, WE FIND NO ILLEGALITY OR PERVERSITY 5 ITA N O. 3636/DEL/2015 (INDIA ISLAMIC CULTURAL CENTRE) IN THE IMPUGNED ORDER AND WE DISMISS THE GROUNDS RA ISED BY THE DEPARTMENT. 6. IN THE FINAL RESULT, THE APPEAL OF THE DEPARTMEN T STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2019. SD/- SD/- (G.D.AGRAWAL) (SUDHANSHU SR IVASTAVA) VICE PRESIDENT JUDICIA L MEMBER DATED: 09.01.2019 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 6 ITA N O. 3636/DEL/2015 (INDIA ISLAMIC CULTURAL CENTRE)