ITO, Ward 10(1), Pune, Pune V. The Agricultural Prdouce Market Committee, Manchar

ITA 462/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9961 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 15-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Assessee Lawyers: SUDHIR TAORI
• Section: 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 462/PN/2011 (ASSTT. YEAR : 2004-05) INCOME TAX OFFICER, APPELLANT WARD 10(1), PUNE V. THE AGRICULTURAL PRODUCE MARKET COMMITTEE RESPONDENT MANCHAR, PUNE PIN : AAAJTI1085G APPELLANT BY : MR. RAJIB JAIN RESPONDENT BY : MR. SU DHIR TAORI DATE OF HEARING : 12/9/ 2012 DATE OF PRONOUNCEMENT : - 9-1 2 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE IM PUGNED ORDER OF THE LD CIT(A)-V, PUNE DATED 27.1.2011 FOR THE A.Y. 2004-05. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPE AL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A)-V, PUNE ERRED IN RELYING UPON THE DECISION O F MADRAS HIGH COURT IN CIT VS. D. LAXMINARAYANPATI (2001) 250 ITR 187 (MAD ) WHEN THE APPELLANT FILED WRIT PETITION BEFORE THE HONBLE HI GH COURT OF JUDICATURE AT BOMBAY WHICH ALLOWED TO WITHDRAW THE PETITION WITH LIBERTY TO APPROACH THE APPROPRIATE FORUM SO AS TO EXHAUST THE APPROPRIATE REMEDY AVAILABLE WITH HIM AND THE RATIO OF THE DECISION IS NOT APPLICABLE IN THE PRESENT CASE AS THE FACT IS ALTOG ETHER DIFFERENT I.E. TO SAY THE APPELLANT FILED WRIT PETITION AGAINST THE ORDER U/S. 264 WHICH IS NOT THE CASE IN THE DECISION CITED BY THE LD. CIT(A)-V, PUN E. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD CIT(A)-V, PUNE HAS ERRED IN NOT APPRECIATING THE FA CT THAT THE ORDER OF HONBLE BOMBAY HIGH COURT HAS ALLOWED THE APPELLANT TO APPROACH THE APPROPRIATE FORUM AGAINST THE ORDER U/S. 264 OF THE CIT-V, PUNE AS SUCH THE COMPETENT FORUM IN THIS CASE IS THE INCOME TAX APPELLATE TRIBUNAL AND NOT THE CIT(A). 2 ITA NO. 462/PN/2011 THE AGRICULTURAL PRODUCE MARKET COMMITTEE, MANCHER A.Y. 2004-05 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD.CIT(A)-V, PUNE HAS FAILED TO APPRECIATE THE FACT THAT THE INCOME OF THE AGRICULTURAL PRODUCE MARKET COMMITTEE IS ENTITLED F OR EXEMPTION U/S. 10(26AAB) INSERTED BY THE FINANCE ACT, 2008 W.E.F. 01/04/2009 (A.Y. 2009-10) ONLY AND PRIOR TO THIS PERIOD THE INCOME O F THE APPELLANT COMMITTEE NEEDS TO BE COMPUTED IN ACCORDANCE WITH T HE PROVISIONS OF SEC. 11 TO 13 OF THE I.T. ACT, INDEPENDENTLY IN RES PECT OF EACH ASSESSMENT YEAR WHERE REGISTRATION U/S. 12AA IS MANDATORY. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A)-V, PUNE ERRED IN HOLDING THAT AN AMENDMENT T O SEC. 2(15) IS MADE BY THE FINANCE ACT, 2008 W.E.F. 1/4/2009 AND FOR TH E ASSESSMENT YEAR UNDER CONSIDERATION, THERE WAS NO BAR FOR CARRYING OUT THE BUSINESS ACTIVITY BY IGNORING THE FACT THAT THE APPELLANTS CASE WAS NOT REGISTERED U/S. 12AA OF THE I.T. ACT AND THAT THE PROVISIONS O F SEC. 11(4A) ARE NOT APPLICABLE AS THE APPELLANT CARRIED OUT THE ACTIVIT Y OF COLLECTING FEES FOR SERVICES AND FACILITIES AND RENT FOR SHOP GIVEN ON LEASE. 2. WE HAVE HEARD THE PARTIES. SO FAR AS GROUND NO. 1 AND 2 ARE CONCERNED, THE REVENUE HAS CHALLENGED THE AUTHORITY OF THE LD CIT(A) TO ADMIT THE APPEAL FILED BY THE ASSESSEE IN A SITUATI ON WHEN THE ASSESSEE HAS PREFERRED REVISION PETITION U/S. 264 OF THE ACT BEFORE THE CIT, PUNE, WHICH WAS DISMISSED. THE ASSESSEE CHALLENGED THE ORDER OF THE LD CIT, PUNE, PASSED U/S. 264 OF THE ACT BY FILING THE WRIT PETITION IN THE HONBLE HIGH COURT OF BOMBAY WHICH WAS SUBSEQUENTLY WITHDRA WN BY GIVING THE REASON THAT THE ASSESSEE MAY BE GIVEN LIBERTY TO AP PROACH THE APPROPRIATE FORUM SO AS TO EXHAUST APPROPRIATE REME DY AVAILABLE WITH HIM. THE LD CIT HAS CONSIDERED THIS ISSUE IN PARA NO. 9 OF HIS ORDER AND HELD THAT EVEN IF THE ASSESSEE HAS EXHAUSTED THE RE MEDY U/S. 264 OF THE ACT, STILL HE CAN FILE APPEAL U/S. 246/246A AS THER E IS NO BAR FOR FILING OF THE APPEAL. WE FIND THAT THE LD CIT(A) HAS RELIED ON THE DECISION OF THE HONBLE HIGH COURT OF MADRAS IN THE CASE OF CIT VS. D. LAXMINARAYANPATI, 250 ITR 187 (MAD). IN THE CASE OF D. LAXMINARAYANP ATI (SUPRA), THEIR LORDSHIPS HAVE HELD THAT THERE IS NO PROVISION IN T HE ACT IN THE EXPRESSED TERMS DEALING WITH THE APPELLATE AUTHORITIES, DO NO T BAR AN ASSESSEE FROM EVOKING THE JURISDICTION OF THE APPELLATE AUTHORITY EVEN IF HE HAD EVOKED REVISIONAL JURISDICTION EVEN THOUGH FOR EVOKING REV ISIONAL JURISDICTION, IT IS A PRE-CONDITION THAT THE APPELLATE JURISDICTION SH OULD NOT HAVE BEEN EVOKED. AS THE DECISION OF THE LD CIT IS SUPPORTED BY THE DECISION OF THE 3 ITA NO. 462/PN/2011 THE AGRICULTURAL PRODUCE MARKET COMMITTEE, MANCHER A.Y. 2004-05 HONBLE HIGH COURT OF MADRAS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD CIT ON THIS ISSUE. ACCORDINGLY, GR OUND NOS. 1 AND 2 ARE DISMISSED. 3. IN GROUND NO.3, THE CONTENTION OF THE REVENUE IS THAT THE INCOME OF THE AGRICULTURE PRODUCE MARKET COMMITTEE IS ENTI TLED FOR EXEMPTION U/S. 10(26AAB) INSERTED BY THE FINANCE ACT, 2008 W .E.F. 01/04/2009 AND PRIOR TO THE SAID PERIOD, INCOME OF THE ASSESSEE NE EDS TO BE COMPUTED AS PER THE PROVISIONS OF SECTIONS 11 TO 13 OF THE ACT INDEPENDENTLY IN RESPECT OF EACH ASSESSMENT YEAR WHERE REGISTRATION U/S 12AA IS MANDATORY. WE FIND THAT THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE FOR DENIAL BY THE CIT V PUNE TO GRANT REG ISTRATION AND DIRECTED THE CIT-V, PUNE TO GRANT REGISTRATION TO THE ASSESS EE U/S. 12AA OF THE ACT. WE FIND NO MERIT IN THE GROUND NO. 3 TAKEN BY THE REVENUE AND ACCORDINGLY, THE SAME IS DISMISSED. 4. SO FAR AS GROUND NO. 4 IS CONCERNED, THE REVENUE HAS QUESTIONED THE APPLICABILITY OF THE NEWLY INSERTED PROVISO TO SEC. 2 (15) BY THE FINANCE ACT, 2008 W.E.F. 1/4/2009. THE LD CIT HAS DEALT WITH THIS ISSUE IN PARAGRAPH NOS. 15 TO 19. ADMITTEDLY, THE PROVIS IO IS INSERTED FROM THE A.Y. 2009-10 AND THE PRESENT A.Y. IS 2004-05. IN O UR OPINION, THE LD CIT(A) HAS RIGHTLY HELD THAT PRIOR TO THE A.Y. 200 9-10, THERE IS NO NEED TO CONSIDER WHETHER THE ACTIVITIES CARRIED ON BY THE ASSESSEE PARTAKES THE CHARACTER OF THE BUSINESS OR NOT. WE FIND NO MERIT IN THE GROUND TAKEN BY THE REVENUE. ACCORDINGLY, GROUND NO. 4 IS DISMI SSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2012 . SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 28TH SEPTEMBER, 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-V, PUNE 4 ITA NO. 462/PN/2011 THE AGRICULTURAL PRODUCE MARKET COMMITTEE, MANCHER A.Y. 2004-05 4. THE CIT(A)-V, PUNE 5. THE D.R. B BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE