The Indian Oil Foundation, New Delhi V. ADIT (E), New Delhi

ITA 4229/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65703 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Keywords: Principle of natural justice
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.4229/DEL./2012 (ASSESSMENT YEAR : 2004-05) THE INDIAN OIL FOUNDATION, VS. ADIT(E), TRUST CIR CLE IV, SCOPE COMPLEX, 7-INSTITUTIONAL AREA, NEW DELHI. CORE II, LODHI ROAD, NEW DELHI. (PAN/GIR NO.AAATI2737A) (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI RAJIV JAIN, CA REVENUE BY : SMT. SHUMANA SEN, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)- XXI, NEW DELHI, DATED 17.05.2012, RELEVANT TO ASSES SMENT YEAR 2004-05, IN WHICH FOLLOWING EFFECTIVE GROUNDS HAVE BEEN RAISED: 1. THE ORDER DATED 17-05-2012 PASSED BY THE LD CI T(A)- XXI, NEW DELHI IS ARBITRARY, AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS WELL AS BAD IN LAW, AS THE ORDER HAS BEEN PASSED WITHOUT APPRECIATING THE FAC TS OF THE CASE AS WELL AS THE PROVISIONS OF LAW AND THE ORDER HAS BEEN PASSED PLACING RELIANCE ON JUDGMENTS HAVING NO SIMILARITY WITH THE FACTS OF TH E ASSESSEE TRUST'S CASE AND THE ASSESSEE TRUST DENIES ITS LIABILITY TO BE ASSES SED AT INCOME OF RS.1,49,09,860/-. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, WHERE THE ASSESSEE TRUST, A TRUST REGISTERED U/ S 12A OF THE I T ACT, SUBSEQUENT TO ITS APPLICATION IN FORM NO 56 FOR GRANT OF EXEMPTION U/ S 10(23C)(I V) OF THE 'ACT' (SUBMITTED ON 12-01-2004 FOR A Y 2004- 2005 TO AY 2006-2007) F ILED ITS RETURN OF INCOME FOR AY 2004-2005 CLAIMING EXEMPTION U/S 10(2 3C)(IV) OF THE 'ACT' WHICH WAS ULTIMATELY GRANTED ON 28.02.2012 AND COPY OF WHICH WAS DULY FURNISHED DURING THE PROCEEDINGS BEFORE THE LD CIT( A)-XXI, NEW DELHI, THE LD CIT(A) WAS WRONG IN SUSTAINING THE ACTION OF THE LD AO WHO APPLIED PROVISIONS OF SECTION 11 TO THE CASE OF THE ASSESSE E TRUST. I.T.A. NO.4229/DEL./2012 (A.Y. : 2004-05) 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, WHERE INCOME OF THE ASSESSEE TRUST INCLUDED INTEREST AMOUNTING TO RS 1, 74,33,355/- ACCRUED ON INVESTMENT OF ITS FUNDS IN 8% RBI BONDS WHICH WAS A CTUALLY RECEIVED IN THE FY 2009-10 UPON MATURITY, EVEN APPLYING PROVISIONS OF SECTION 11 OF THE ACT, THE LD. CIT(A)-XXI, NEW DELHI ERRED IN CONFIRM ING THE ACTION OF THE LD. AO WHO WRONGLY APPLIED PROVISIONS OF SECTION SUB-SE CTION 2 OF SECTION 11 OF THE I.T. ACT, 1961 AND ASSESSED AN AMOUNT OF RS.1,4 9,09,860/- AS INCOME OF THE ASSESSEE TRUST. 4. THAT THE ISSUE REGARDING SUBMISSION OF INTIMATI ON REQUIRED U/ S 11 (2) OF THE 'ACT' HAVING BEEN SETTLED BY THE HON'BLE APEX COURT IN CIT V. NAGPUR HOTEL OWNERS ASSOCIATION (2001) 247 ITR 201, WHEREIN THE APEX COURT HAS HELD THAT THE SAID INTIMATION HAS TO BE FURNISHED BEFORE THE ASSESSING AUTHORITY COMPLETES THE CONCERNED ASSESSMENT, THE LD. AO AS W ELL AS THE LD. CIT(A) ERRED IN LAW IN IGNORING FORM 10 SUBMITTED BY THE A SSESSEE TRUST AO DURING THE ASSESSMENT PROCEEDINGS READ WITH RULE 17 OF TH E I.T. RULES, 1962. 2. AT THE VERY OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS REGISTERED U/S 12A OF THE ACT SUBSEQUENT TO ITS APP LICATION IN FORM NO.56 FOR GRANT OF EXEMPTION U/S 10(23)(IV) OF THE ACT, SUBMITTED ON 1 2.01.2004 FOR ASSESSMENT YEAR 2004- 05 TO ASSESSMENT YEAR 2006-07 FILED ITS RETURN OF I NCOME CLAIMING EXEMPTION WHICH WAS ULTIMATELY GRANTED ON 28.02.2012, COPY OF WHICH WAS DULY FURNISHED DURING THE PROCEEDINGS BEFORE CIT(A), BUT CIT(A) WAS WRONG IN SUSTAINING THE ACTION OF THE ASSESSING OFFICER, WHO APPLIED PROVISIONS OF SECTIO N 11 TO THE CASE OF THE ASSESSEE TRUST. IT WAS THUS SUBMITTED THAT IN ALL FAIRNESS, ORDER O F CIT(A) SHOULD BE SET ASIDE AND MATTER MAY BE RESTORED BACK ON HIS FILE TO CONSIDER EXEMPT ION WHICH WAS ULTIMATELY GRANTED ON 28.02.2012 FOR THE YEAR UNDER CONSIDERATION AND PAS S A FRESH ORDER AND TO THIS MOVE OF LD. COUNSEL FOR THE ASSESSEE, LD.DR THOUGH RELIED U PON ORDERS OF AUTHORITIES BELOW, BUT DID NOT RAISE ANY SERIOUS OBJECTION IF MATTER IS RE STORED BACK ON THE FILE OF THE CIT(A). 3. WE HAVE HEARD BOTH THE SIDES AND CONSIDERING TH E MATERIAL ON RECORD AND FIND IT JUST AND APPROPRIATE TO SET ASIDE THE ORDER OF THE CIT(A ) AND RESTORE THE MATTER BACK TO HIS FILE WITH THE DIRECTION TO RE-DECIDE THE APPEAL AFRESH A FTER APPROPRIATELY CONSIDERING THE RELEVANT PAPER ALREADY FURNISHED OR TO BE FURNISHED DURING T HE HEARING AFTER GIVING DUE OPPORTUNITY TO THE ASSESSING OFFICER AS WELL AS TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. I.T.A. NO.4229/DEL./2012 (A.Y. : 2004-05) 3 4. AS A RESULT, THE APPEAL OF THE ASSESSEE GETS A CCEPTED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT SOON AFTER THE CONC LUSION OF THE HEARING ON 10.10.2012. SD/- SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : OCT. 10, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXI, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT