Income Tax Officer, Basti V. Secretary, M/s. Krishi Utpadan Mandi Samiti , SiddharthNagar

ITA 38/LKW/2013

• Counselvise Citation: 3823714 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-03-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: P K KAPOOR
• Section: 12A; 12AA; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.38 & 39/LKW/2013 ASSESSMENT YEARS:2003 - 04 & 2004 - 05 INCOME TAX OFFICER, BASTI. VS. KRISHI UTPADAN MANDI SAMITI, BANSI, SIDDHARTH NAGAR. PAN:AAALK0622N (APPELLANT) (RESPONDENT) ITA NOS.40 & 41/LKW/2013 ASSESSMENT YEARS:2003 - 04 & 2004 - 05 INCOME TAX OFFICER, BASTI. VS. KRISHI UTPADAN MANDI SAMITI, SAHIYAPUR, SIDDHARTH NAGAR. PAN:AAALK0620R (APPELLANT) (RESPONDENT) APPELLANT BY SHRI Y. P. SRIVASTAVA, D. R. RESPONDENT BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 03/03/2014 DATE OF PRONOUNCEMENT 2 3 /05/2014 O R D E R PER BENCH: THESE FOUR APPEALS ARE FILED BY THE REVENUE IN CASE OF TWO DIFFERENT ASSESSEES I.E. KRISHI UTPADAN MANDI SAMITI, BANSI, SIDDHARTH NAGAR AND KRISHI UTPADAN MANDI SAMITI, SAHIYAPUR, SIDDHARTH NAGAR FOR ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 AND SINCE THE ISSUE INVOLVED IS COMMON, ALL THESE APPEA LS ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE APPEALS, GROUND NO. 1 IS IDENTICAL, WHICH READS AS UNDER: 2 1. SINCE THE SOCIETY WAS NOT HAVING REGISTRATION U/S 12AA OF THE INCOME TAX ACT, 1961 DURING THE RELEVANT ASSESSMENT YEARS AS THE REGISTRATION WAS GRANTED W.E.F. 01/04/2005 ONLY, THE CASE IS NOT COVERED BY THE ORDER OF THE APEX COURT PASSED IN CIVIL APPEAL NO. 7040 OF 2012 (ARISING OUT OF S.L.P. (C) NO.20186 OF 2010). 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). HE ALSO SUBMITTED THAT AS PER TRIBUNAL ORDER DATED 31/01/2007 IN I.T.A. NO.1107/LKW/06, THE TRIBUNAL HAS CONDONED THE DELAY IN FILING THE APPLICATI ON FOR REGISTRATION AND ACCORDINGLY DIRECTED THAT THE REGISTRATION SHOULD BE GRANTED TO THE ASSESSEE U/S 12AA OF THE ACT WITH EFFECT FROM 01/04/2003 AND, THEREFORE, EVEN IF FORMAL CERTIFICATE OF REGISTRATION U/S 12AA HAS NOT BEEN ISSUED BY THE CIT(A), THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 11 IN THE IMPUGNED YEARS I.E. ASSESSMENT YEAR 2003 - 04 AND 2004 - 05 CANNOT BE DENIED. HE FURTHER SUBMITTED THAT UNDER THESE FACTS, THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS KRISHI UTPADAN MANDI SAMITI AS REPORTED IN [2012] 348 ITR 566 (SC) IS FULLY APPLICABLE IN THE FACTS OF THE PRESENT CASES. IN PARTICULAR, OUR ATTENTION WAS DRAWN TO PARA 8 & 9 OF THE ABOVE JUDGMENT OF HON'BLE APEX COURT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER PARA NO. 6 OF THE TRIBUNAL DECISION DATED 31/01/2007 IN ASSESSEES OWN CASE ALONG WITH VARIOUS OTHER KRISHI UTPADAN MANDI SAMITI, IT WAS HELD THAT THE REGISTRATION SHOULD BE GRANTED TO THE ASS ESSEE U/S 12A WITH EFFECT FROM 01/04/2003. NOW THE FACTS, AS NARRATED BY LEARNED A.R. OF THE ASSESSEE, ARE THAT INSPITE OF CLEAR DIRECTION OF THE TRIBUNAL, NO CONSEQUENTIAL ORDER HAS BEEN PASSED BY CIT FOR GRANTING REGISTRATION TO ASSESSEES WITH EFFECT FR OM 01/04/2003. BUT W E FIND THAT IN THE ASSESSMENT ORDER, IT IS NOT HELD BY THE ASSESSING OFFICER THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT. IN FACT THE ASSESSING OFFICER HAS ALLOWED DEDUCTION OF RS.10,81,342/ - IN 3 I.T.A. NO.38/LKW/ 2003 TO THE EXTENT OF 15% OF GROSS RECEIPTS ON THE BASIS THAT TO THIS EXTENT, THE ASSESSEE WAS ALLOWED FOR ACCUMULATION U/S 11 OF THE ACT. IN VIEW OF THIS FACTUAL POSITION, WE ARE OF THE CONSIDERED OPINION THAT THIS GROUND OF THE REVENUE DOES NOT ARISE OU T OF THE ORDERS OF THE AUTHORITIES BELOW AND THUS THIS GROUND IS MIS CONSTRUED . ACCORDINGLY, THIS GROUND OF THE REVENUE IS REJECTED. 5. AS PER THE SECOND GROUND OF THE REVENUE, WE FIND THAT THE GRIEVANCE OF THE REVENUE IS THIS THAT CIT(A) WAS NOT JUSTIF IED TO CONSIDER THE NOTICE OF ACCUMULATION OF RS.16,88,933/ - IN I.T.A. NO.38/LKW/2013, RS.29,26,664/ - IN I.T.A. NO.39/LKW/2013, RS.73,30,215/ - IN I.T.A. NO.40/LKW/2013 AND RS.90,49,645/ - IN I.T.A. NO.41/LKW/2013. ON THIS ISSUE , WE FIND THAT THE ISSUE HAS BEEN DECIDED BY CIT(A) AS PER PARA 7.3 OF HIS ORDER IN THE CASE OF KRISHI UTPADAN MANDI SAMITI, BANSI AND PARA NO. 8.3 IN THE CASE OF KRISHI UTPADAN MANDI SAMITI, SAHIYAPUR. THE SE PARAS ARE IDENTICAL AND HENCE, WE REPRODUCE PARA 7.3 FROM THE ORDER OF CIT( A) IN I.T.A. NO.38/LKW/2013 AS UNDER: 7.3 I HAVE EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE. I HAVE CONSIDERED THE FINDINGS OF THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE APPELLANT. I FIND THAT HON'BLE APEX COURT CONSIDERED THE ISSUE IN THE CA SE OF CIT VS NAGPUR HOTEL OWNERS ASSOCIATION IN (2001) 247 ITR 201 (SC) WHEREIN IT HAS BEEN HELD THAT THE REQUIREMENT OF LAW IS THAT THE NOTICE OF ACCUMULATION IN FORM NO. 10 IS TO BE FURNISHED BEFORE THE AO BEFORE THE AO COMPLETES THE ASSESSMENT. ACCORDIN GLY, THE AO IS DIRECTED TO CONSIDER THE NOTICE OF ACCUMULATION OF RS.16,88,633/ - IN FORM NO. 10 FILED ON 08.05.2007 IN CASE ANY SURPLUS IS WORKED OUT AFTER GIVING EFFECT TO THIS APPELLATE ORDER. 5.1 FROM THE ABOVE PARA OF THE ORDER OF CIT(A), WE FIND THAT THE CIT(A) HAS DECIDED THE ISSUE BY FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS NAGPUR HOTEL OWNERS' ASSOCIATION AS REPORTED IN [2001] 247 ITR 201 (SC) . IN THE PRESENT CASE, THIS 4 IS NOT THE CASE OF THE ASSESSING OFFICER THAT NOTICE OF ACCUMULATION IN FORM NO. 10 WAS NOT FURNISHED BEFORE HIM AT ALL. THE OBJECTION OF THE ASSESSING OFFICER IS THAT SUCH NOTICE OF ACCUMULATION WAS UNDATED AND IT WAS NOT SUBMITTED ALONG WITH THE RETURN OF INCOME FILED U/S 139(1) BECAUSE NO SUCH RETURN WAS FILED BY THESE ASSESSEES U/S 139(1) OF THE ACT. WITH REGARD TO THIS OBJECTION OF THE ASSESSING OFFICER, WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF T HE ASSESSEE BY TH IS JUDGMENT OF HON'BLE APEX COURT WHEREIN IT WAS HELD THAT THE REQUIREMENT OF LAW IS THAT NOTICE OF ACCUMULATION WILL BE FURNISHED BEFORE THE ASSESSING OFFICER BEFORE HE COMPLETES THE ASSESSMENT. THE DIRECTION OF CIT(A) IS THAT SINCE THE NOTICE OF ACCUMULATION WAS SUBMITTED BY THE ASSESSEE BEFORE THE COMPLETION OF THE ASSESSMENT, THE SAME SHOULD BE CONSIDERED BY THE ASSESSING OFFICER. CONSIDERING ALL THESE FACTS AND THE JUDGMENT OF HON'BLE APEX COURT FOLLOWED BY LEARNED CIT(A), WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) ON THIS ISSUE IN ANY OF THESE CASES. HENCE, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE IN ALL THESE FOUR APPEALS. 6. IN THE RESULT, ALL THE FOUR APPEALS OF THE REVENUE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR