M/s. Khurja Development Authority, Bulandshahr V. JCIT, Bulandshahr

ITA 4291/DEL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6664 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4290/DEL./2014 (ASSESSMENT YEAR : 2009-10) ITA NO.4291/DEL./2014 (ASSESSMENT YEAR : 2010-11) KHURJA DEVELOPMENT AUTHORITY, VS. ACIT , YAMUNAPURAM COMMERCIAL COMPLEX, BULANDSHAHR RANGE , M.G. ROAD, BHOOR, BULANDSHAHR. BULANDSHAHR 203 001. (PAN : AAALK0805D) ITA NO.5103/DEL./2016 (ASSESSMENT YEAR : 2012-13) KHURJA DEVELOPMENT AUTHORITY, VS. ACIT (E), YAMUNAPURAM COMMERCIAL COMPLEX, EXEMPTION CIRCLE, M.G. ROAD, BHOOR, GHAZIABAD. BULANDSHAHR 203 001. (PAN : AAALK0805D) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI AMIT JAIN, SENIOR DR DATE OF HEARING : 12.07.2018 DATE OF ORDER : 19.07.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 2 SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS FILED BY THE ASSESSEE, THE SAME ARE BEING DISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUSSION. 2. THE APPELLANT, ACIT, BULANDSHAHR CIRCLE, BULANDS HAHR AND ACIT, EXEMPTION CIRCLE, GHAZIABAD (HEREINAFTER REFE RRED TO AS THE REVENUE) IN ITA NOS.4290/DEL/2014, 4291/DEL/2014 AND 5103/DEL/2016 BY FILING THE PRESENT APPEALS, SOUGH T TO SET ASIDE THE IMPUGNED ORDERS DATED 28.03.2014, 28.03.2014 AN D 22.06.2016 PASSED BY LD. CIT (APPEALS), MEERUT/GHAZIABAD QUA T HE ASSESSMENT YEARS 2009-10, 2010-11 AND 2012-13 ON TH E IDENTICAL GROUNDS INTER ALIA THAT :- 1. BECAUSE THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND AGAINST THE FACTS OF THE APPEAL. 2. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) WAS WHOLLY UNJUSTIFIED IN DECIDING THE APPEAL EX - PARTE WITHOUT CONSIDERING THE FACTS OF THE APPEAL AND ALSO WITHOU T CONSIDERING THE ADJOURNMENT APPLICATION FILED BY THE APPELLANT THROUGH REGISTERED POST. THE ORDER WAS PASSED BY LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 28.03.2014 WHEREAS THE ORDER WAS DISPATCHED ON 12.06.2014 WHEREAS AS P ER INSTRUCTION NO. 20/2003 F. NO. 279/MISC 5312003 DAT ED 23.12.2003 THE ORDER MUST HAVE BEEN DISPATCHED WITH IN 15 DAYS FROM THE DATE OF ORDER. 3. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) ERRED BOTH IN LAW AND ON FACTS IN DISMISSING THE AP PEAL OF THE APPELLANT WHEREAS THE MAIN GROUND IN THE APPEAL BEF ORE LEARNED CIT (APPEAL) WAS THAT THE ASSESSING OFFICER HAS ASS ESSED SURPLUS OF 'RECEIPTS AND EXPENDITURE ACCOUNTS' MERELY ON TH E BASIS OF REJECTION OF REGISTRATION U/S 12AA, BY COMMISSIONER OF INCOME TAX, ALTHOUGH THE ISSUE OF REGISTRATION WAS SUB-JUD ICE BEFORE ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 3 HON'BLE INCOME TAX APPELLATE TRIBUNAL. AND THAT ISS UE WAS DECIDED BY HON'BLE ITAT, BENCH - A, NEW DELHI VIDE ORDER DATED 29.04.2014 IN ITA NO. 38751OEL/2009 AND ITA NO. 905 /0EL.L2011 IN FAVOUR OF APPELLANT. THE APPELLANT HAS ALSO INFO RMED ABOUT THE ORDER OF HON'BLE ITAT TO CIT (APPEAL) REGARDING THAT ORDER VIDE REGISTERED LETTER ON 06.06.2014. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : THE ASSESSEE IS ENGAGED I N TOWN PLANNING AND DEVELOPMENT WITH THE GRANT SANCTIONED BY STATE GOVERNMENT AS WELL AS ITS OWN FUNDS. IN AY 2008-09, THE STATUS O F THE ASSESSEE WAS TAKEN AS ARTIFICIAL JURIDICAL PERSON (AJP) INST EAD OF AOP (TRUST) AND SAME STATUS HAS BEEN TREATED FOR THE PU RPOSE OF TAXING, THE ASSESSEE HAS BEEN CARRIED FORWARD FOR AYS 2009- 10, 2010-11 AND 2012-13. ASSESSEES APPLICATION FOR REGISTRATI ON UNDER SECTION 12A OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT ) WAS DISMISSED BY THE COMMISSIONER OF INCOME-TAX VIDE OR DER DATED 04.03.2009. THEN THE MATTER WAS ADJUDICATED BEFORE THE TRIBUNAL AND CASE WAS REMANDED BACK AND AGAIN THE APPLICATIO N WAS REJECTED VIDE ORDER DATED 28.12.2010. SO, THE AO PROCEEDED TO TAX THE ENTIRE SURPLUS AVAILABLE WITH THE ASSESSEE BY HOLDI NG THAT THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 11 OF TH E ACT AND THEREBY ASSESSEE THE TOTAL INCOME AT RS.1,33,81,706/-, RS.2 ,22,25,644/- AND RS.8,93,19,000/- FOR AYS 2009-10, 2010-11 AND 2012- 13 RESPECTIVELY. ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 4 4. ASSESSEE CARRIED THE MATTER BY WAY OF APPEALS BE FORE THE LD. CIT (A) WHO HAS CONFIRMED THE ADDITIONS BY DISMISSI NG THE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 5. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE OF 12.07.2018 AND CONSEQUENT LY, WE PROCEEDED TO DECIDE THE PRESENT APPEAL WITH THE ASS ISTANCE OF THE LD. SENIOR DR AS WELL AS ON THE BASIS OF DOCUMENTS AVAI LABLE ON THE FILE. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. UNDISPUTEDLY, THE ASSESSEE BEING ENGAGED IN TOWN PLANNING AND DEVELOPMENT WITH THE GRANT SANCTIONED BY STATE GOVERNMENT AS WELL AS WITH ITS OWN FUNDS HAD APPLIED FOR REGISTRA TION U/S 12A WHICH WAS DECLINED BY THE COMMISSIONER (EXEMPTIONS) . IT IS ALSO NOT IN DISPUTE THAT THE ISSUE RAISED BEFORE AO, THE LD. CIT (A) AS WELL AS BEFORE THE TRIBUNAL IS AS TO WHETHER THE A SSESSEE IS ENTITLED FOR EXEMPTION FROM TAX UNDER SECTION 11 OF THE ACT IN THE ABSENCE OF REGISTRATION U/S 12A OF THE ACT. ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 5 8. THE LD. DR FOR THE REVENUE DEFENDING THE ASSESSM ENT ORDER PASSED BY THE AO AND CONFIRMED BY LD. CIT (A) CONTE NDED THAT SINCE ASSESSEE HAS NOT BEEN GRANTED REGISTRATION U/ S 12A OF THE ACT, IT IS NOT ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT AND THE SURPLUS INCOME OVER EXPENDITURE HAS BEEN RIGHTLY HELD TO BE TAXABLE AND RELIED UPON THE DECISION RENDERED BY HONBLE APEX C OURT IN CASE CITED AS NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS. CCIT (2018) 95 TAXMANN.COM 58 (SC) . 9. WE HAVE GONE THROUGH THE JUDGMENT IN CASE OF NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS. CCIT (SUPRA) WHICH IS SQUARELY APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE WHEREIN NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY (NOIDA) CONSTITUTED FOR THE DEVELOPMENT OF CERTAIN AREAS IN THE STATE OF UP INTO INDUSTRIAL AND URBAN TOWNSHIP IS NOT A MUNICIP ALITY. OPERATIVE PART OF THE JUDGMENT IN NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS. CCIT (SUPRA) IS EXTRACTED FOR READY PERUSAL AS UNDER:- THE APPELLANT-NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY (NOIDA) WAS CONSTITUTED UNDER SECTION 3 O F THE U.P. INDUSTRIAL AREA DEVELOPMENT ACT, 1976 BY NOTIFICATION DATED 17.04.1976. THE 1976ACT, WAS ENACTED BY STATE LEGISLATURE TO PROVIDE FOR THE CONSTITUTION OF AN AUTHORITY FOR THE DEVELOPMENT OF CERTAIN AREAS IN THE STATE OF UP INTO INDUSTRIAL AN D URBAN TOWNSHIP. UNDER THE 1976ACT, VARIOUS FUNCTION S HAD BEEN ENTRUSTED TO THE AUTHORITIES. ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 6 HELD, THAT NOIDA IS NOT COVERED BY THE WORD/EXPRESSION OF 'MUNICIPALITY' IN CLAUSE (E) OF ARTICLE 243P. IT IS NEITHER INCLUDED IN SUB-CLAUSE (II) OF EXPLANATION, NOR IS IT COVERED BY SECTION 10(20) EX CEPT CLAUSE (II). THUS, NOIDA IS NOT A LOCAL AUTHORITY; HENCE, IS NOT EXEMPTED FROM PAYMENT OF INCOME TAX UNDER SECTION 10(20) AND SECTION 10(20A) OF INCOME TAX ACT, 1961. 10. SO, FOLLOWING THE DECISION RENDERED BY THE HON BLE APEX COURT IN THE CASE OF NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY VS. CCIT (SUPRA), WE FIND NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) CONFIRMING THE ASSESSMENT ORDER BY TREATING ENTIRE SURPLUS INCOME OVER EXPENDITURE AVAILABLE WITH THE ASSESSEE AS TAXABLE INCOME UNDER NORMAL PROVISIONS OF THE INCOME-TAX ACT, BEING NOT A MUNICIPALITY CLAUSE (E) OF ARTICLE 234P OF THE CONSTITUTION. HE NCE, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF JULY, 2018. SD/- SD/- (N.K. BILLAIYA) (KULDIP SING H) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 19 TH DAY OF JULY, 2018 TS ITA NOS.4290 & 4291,/DEL./2014 ITA NO.5103,/DEL./2016 7 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT/GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.