ITO, New Delhi V. M/s India Islamic Cultural Centre, New Delhi

ITA 4443/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4066 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 07-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR
• Keywords: Gift; Depreciation; Charitable institution
• Section: 80G; 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4443/DEL./2015 (ASSESSMENT YEAR : 2011-12) ITO (E), WARD 1 (2), VS. M/S. INDIA ISLAMIC CULTURA L CENTRE, NEW DELHI. OPP. MAUSAM BHAWAN, 87 88, LODHI ESTATE, NEW DELHI. (PAN : AAATI2770F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.S. SINGHVI, CA REVENUE BY : SHRI AMIT JAIN, SENIOR DR DATE OF HEARING : 14.12.2017 DATE OF ORDER : 22.01.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME TAX OFFICER (EXEMPTION), WAR D 1 (2), NEW DELHI (HEREINAFTER REFERRED TO AS THE REV ENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 30.04.2015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 40, NEW DELHI QUA THE ASSESSMENT YEAR 2011-12 ON TH E GROUNDS INTER ALIA THAT :- 1, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE A SSESSEE SOCIETY IS A CHARITABLE ORGANIZATION DESPITE THE FACT THAT THE ASSESSEE SOCIETY WAS DOING BUSINESS WITHIN THE MEANING OF AM ENDED PROVISIONS OF SECTION 2(15) OF THE INCOME TAX ACT . ITA NO.4443/DEL/2015 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE F ACILITIES LIKE CAFETERIA AND COFFEE SHOP WERE CREATED FOR THE MEMB ERS OF THE ASSESSEE SOCIETY DESPITE THAT THESE FACILITIES WERE SIMULTANEOUSLY PROVIDED IN GENERAL TO THE PERSONS OTHER THAN MEMBE RS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) HAS ERRED IN ALLOWING THE CLAI M OF DEPRECIATION OF RS. 1,13,40,793/- TO THE ASSESSEE I GNORING THE FACT THAT THE ASSESSEE HAD CLAIMED THE AMOUNT INCURRED O N PURCHASE OF ASSETS IN EARLIER YEARS AS APPLICATION OF INCOME , ON WHICH DEPRECIATION IS CLAIMED NOW AND FURTHER ALLOWANCE O F DEPRECIATION WILL BE TANTAMOUNT TO DOUBLE DEDUCTION . 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OR RS. 1,13,40,793/- TO THE ASSESSEE I N VIEW OF THE RECENT DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT(E) VS. CHARANJIV CHARITABLE TRUST DATED 18.03.2 014. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF RS. 80,61,500/- MADE ON ACCOUNT OF MEMBERSHIP FEES NOT INCLUDED IN TOTAL INCOME. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : ASSESSEE SOCIETY IS REGIS TERED UNDER SECTION 12A AND UNDER SECTION 80G(5)(VI) OF THE INC OME-TAX ACT, 1961 (FOR SHORT THE ACT) VIDE ORDER DATED 02.09.2 008 FROM 01.04.2008 TO 31.03.2011 WITH ITS AIMS AND OBJECTS TO PROPAGATE SECULAR IDEAS IN ORDER TO MAINTAIN SECULAR CHARACTE R OF THE COUNTRY. ASSESSEE SOCIETY IS ALSO MAINTAINING A CAFETERIA TH ROUGH A CONTRACTOR FOR THE BENEFIT OF MEMBERS AND THEIR GUE STS ONLY. AO TAKEN A VIEW THAT THE ASSESSEE SOCIETY IS NEITHER I N THE FIELD OF EDUCATION NOR IN THE FIELD OF MEDICAL RELIEF OR RELIEF OF POOR AND ITS MAIN SOURCE OF RECEIPT IS FROM CAFETER IA AND FACILITIES ITA NO.4443/DEL/2015 3 GIVEN ON HIRING ARE OF COMMERCIAL IN NATURE FOR WHI CH NO SEPARATE BOOKS OF ACCOUNTS WERE PRODUCED AND THEREBY DISALLO WED THE BENEFIT OF SECTION 11 OF THE ACT AND ASSESSED THE T OTAL TAXABLE INCOME OF THE ASSESSEE SOCIETY AT RS.2,28,09,740/-. 3. ASSESSEE SOCIETY CARRIED THE MATTER BY WAY OF FI LING APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY CHALLENGING THE IMPUGNED ORDER PASSED B Y LD. CIT (A) . 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES 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. 5. UNDISPUTEDLY, THE AO HAS DENIED THE BENEFIT OF S ECTION 11 OF THE ACT TO THE ASSESSEE SOCIETY ON THE SOLE QUESTIO N THAT THE DECISION RENDERED BY THE LD. CIT (A) IN ASSESSEES OWN CASE FOR AY 2009-10 HAS SINCE BEEN CHALLENGED BEFORE THE TRIBUN AL AND THE APPEAL IS PENDING FOR DISPOSAL. 6. HOWEVER, THE LD. AR FOR THE ASSESSEE SOCIETY BRO UGHT ON RECORD THE DECISION RENDERED BY THE COORDINATE BENC H OF THE TRIBUNAL DATED 30.07.2014 IN ITA NO.4127/DEL/2012 FOR AY 200 9- 10 IN ASSESSEES OWN CASE AFFIRMING THE DECISION RENDERED BY THE LD. CIT (A) IN ASSESSEES OWN CASE FOR AY 2009-10. IT IS NOT IN ITA NO.4443/DEL/2015 4 DISPUTE THAT THE IDENTICAL ISSUE AS TO GENERATING P ROFIT BY THE ASSESSEE SOCIETY FROM CAFETERIA AND GIFT SHOP WAS A LSO THERE IN AY 2009-10 AND THE SAME WAS DECIDED IN FAVOUR OF THE A SSESSEE SOCIETY ON THE GROUND THAT THE PROFIT WAS GENERATED FROM TH E CAFETERIA AND GIFT SHOP WAS ULTIMATELY USED FOR ACHIEVING THE AIM S AND OBJECTS OF THE ASSESSEE SOCIETY. 7. WHEN ASSESSEE SOCIETY HAS BEEN DULY REGISTERED U /S 12A OF THE ACT AFTER EXAMINING ITS AIMS AND OBJECTS AND AP PROVAL U/S 80G IS ALSO THERE FOR THE PERIOD UNDER ASSESSMENT AND I SSUE RAISED IN THE PRESENT APPEAL BY THE REVENUE HAS ALREADY BEEN DECI DED BY THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009-10 AND NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE LD. DR TO DEPART FROM THE FINDINGS GIVEN BY THE COORDINATE BENCH, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT (A) HAS EXT ENSIVELY EXAMINED THE ISSUE AND DECIDED IN FAVOUR OF THE ASS ESSEE. SO, FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER, THE PRESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMI SSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF JANUARY, 2018. SD/- SD/- (R.S. SYAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 22 ND DAY OF JANUARY, 2018/TS ITA NO.4443/DEL/2015 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-40, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.