Ashwini Sahakari Rugnalaya & Research Centre, Solapur V. Assistant Commissioner of Income-tax,

ITA 451/PUN/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7110 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-11-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80G; 12AA; 12

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVE DI, AM . / ITA NOS.450, 452, 453 & 455/PUN/2014 / ASSESSMENT YEARS : 2004-05, 2006-07, 2007-08 & 2 009-10 ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE, PLOT NO.108, NORTH SADAR BAZAR, SOLAPUR 413 003 PAN : AAAJA0041K . /APPELLANT VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, SOLAPUR . / RESPONDENT . / ITA NO.451/PUN/2014 / ASSESSMENT YEAR : 2005-06 ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE, PLOT NO.108, NORTH SADAR BAZAR, SOLAPUR 413 003 PAN : AAAJA0041K . /APPELLANT VS. INCOME TAX OFFICER, WARD-1(2), SOLAPUR . / RESPONDENT . / ITA NO.454/PUN/2014 / ASSESSMENT YEAR : 2008-09 ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE, PLOT NO.108, NORTH SADAR BAZAR, SOLAPUR 413 003 PAN : AAAJA0041K . /APPELLANT VS. DY. COMMISSIONER OF TAX OFFICER, CIRCLE-1, SOLAPUR . / RESPONDENT CORRIGENDUM PER SUSHMA CHOWLA, JM: A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WH ICH WAS DISPOSED OF ON 30-11-2017 UNDER WHICH THE SECOND ISSUE RAISED HAS NOT BEEN ADJUDICATED. REFERENCE TO THE SECOND ISSUE IS MADE VIDE PARA 11 OF THE SAID ORDER. HOWEVER, ITA NOS.450 TO 455/PUN/2014 ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE 2 NO DECISION IN RESPECT OF THE SECOND ISSUE HAS BEEN GIVEN. ACCORDINGLY, REVISED PARA NO.20 OF THE ORDER WOULD READ AS UNDER : 20. NOW COMING TO THE SECOND OBJECTION OF THE AUTH ORITIES BELOW THAT THE ASSESSEE WAS NOT REGISTERED WITH THE BOMBAY PUBLIC TRUST. THE ASSESSEE WAS A COOPERATIVE SOCIETY AND HAD SPECIFIC OBJECT O F RUNNING THE HOSPITAL WHEREIN IN THE BYE-LAWS IT WAS CLEARLY PROVIDED TH AT THE SURPLUS ALSO WOULD FLOW BACK FOR THE ACTIVITIES OF THE TRUST AND WOULD NOT BE DISTRIBUTED AMONG THE MEMBERS. THE PERUSAL OF THE ASSESSMENT ORDER R EFLECTS THAT THE ASSESSING OFFICER CONSIDERED THE ISSUE OF GRANT OF EXEMPTION IN THE LIGHT WHETHER THE ASSESSEE WAS CARRYING ON THE ACTIVITIES OF PHILANTHROPY OR NOT. HOWEVER, IN VIEW OF THE DEVELOPMENTS AFTER THE ORDE RS PASSED BY THE AUTHORITIES BELOW, WE FIND NO MERIT IN THE SAID EXE RCISE CARRIED OUT BY THE ASSESSING OFFICER, WHICH HAS BEEN CONFIRMED BY THE CIT(A). IN THE CASE OF THE ASSESSEE ITSELF, WHICH WAS A COOPERATIVE SOCIET Y ADMITTEDLY NOT REGISTERED UNDER THE BOMBAY PUBLIC TRUST ACT AND WA S RUNNING THE MULTI- SPECIALITY HOSPITAL IN THE YEARS UNDER APPEAL AND A LSO IN THE SUCCEEDING YEARS, THE ASSESSING OFFICER IN ASSESSMENT YEAR 201 4-15 AND EVEN AS RECENT AS IN ASSESSMENT YEAR 2015-16 VIDE ORDER DAT ED 17-11-2017 HAD HELD THE ASSESSEE TO BE ELIGIBLE FOR GRANT OF EXEMP TION UNDER SECTION 11 AND 12 OF THE ACT, VIDE ORDERS PASSED UNDER SECTION 143 (3) OF THE ACT. IN OTHER WORDS, THE CLAIM OF THE ASSESSEE OF BEING REGISTERE D UNDER SECTION 12AA OF THE ACT HAS BEEN ACCEPTED AND ADOPTED FOR GIVING RE LIEF TO THE ASSESSEE BY WAY OF EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT . THE SECOND ASPECT WHICH IS RELATED TO A TRUST IS ITS ENTITLEMENT TO C LAIM RECOGNITION UNDER SECTION 80G OF THE ACT. THE ASSESSEE HAD BEEN GRAN TED THE SAID RECOGNITION UNDER SECTION 80G OF THE ACT BY THE COM MISSIONER VIDE ITS ORDER DATED 30-03-2017, COPY OF WHICH IS PLACED ON RECORD . IN VIEW OF THESE SUBSEQUENT EVENTS, WE HOLD THAT THE ASSESSEE AFTER RECEIVING THE DEEMED REGISTRATION UNDER SECTION 12AA OF THE ACT, IS ENTI TLED TO CLAIM THE EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT. THE SAME CANNO T BE DENIED TO THE ASSESSEE ON THE ASPECT OF THE ASSESSEE HAVING RECEI VED DEEMED REGISTRATION OR THE ASSESSEE NOT BEING REGISTERED U NDER THE BOMBAY PUBLIC TRUST ACT OR ANY OTHER ISSUE IN THIS REGARD. ACCOR DINGLY, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE EXEMPTION UNDER SECT ION 11 AND 12 OF THE ACT TO THE ASSESSEE IN THE YEARS UNDER APPEAL. CONSEQUENT TO OUR ALLOWING ITA NOS.450 TO 455/PUN/2014 ASHWINI SAHAKARI RUGNALAYA & RESEARCH CENTRE 3 THE EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT TO THE ASSESSEE, THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE AC T IN ASSESSMENT YEARS 2005-06 AND 2006-07 IS NOT WARRANTED. HENCE, THE SAID ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. THE BALANCE ORDER SHALL REMAIN UNCHANGED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 TH DAY OF DECEMBER, 2017. SD/- SD/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE; DATED : 08 TH DECEMBER, 2017. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRIVAT E SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-III, PUNE 4. CIT-III, PUNE 5. , , B BENCH PUNE; 6. / GUARD FILE.