Adarsh Shiksha Sansthan, Delhi V. ITO(Exemption), Ward-1(1), New Delhi

ITA 4793/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3945 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 04-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K CHADHA
• Keywords: Opportunity of being heard; Capital receipt; Revenue expenditure; Capital expenditure; Set aside
• Section: 234B; 10B; 250; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4793/DEL/2018 [ASSESSMENT YEAR: 2014-15] ADARSH SHIKSHA SANSTHAN, VS. ITO(E), WAR D 1(1) C/O THE KIDS ELEMENTARY SCHOOL, NEW DELHI BLOCK B-2, ASHOK VIHAR, PHASE-II, NEW DELHI 110 052 (PAN: AAATA1783A) [APPELLANT] [RESPONDENT] ASSESSEE BY: SH. A.K. CHADHA, CA REVENUE BY : SH. PRADEEP SINGH GAUTAM, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS-40], NEW DELHI DATED 04.05.2018 PERTAINING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOW ING GROUNDS:- 1. THAT THE IMPUGNED ORDER UNDER SECTION 250 OF INCOME TAX ACT,1961 OF LD. CIT (APPEALS)-40, NEW DELHI DATED 04.05.2018 IS BAD IN LAW AND WRONG, INCORRECT AND ILLEGAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LEGAL POSITION. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE LEGAL POSITION THAT LD. CIT(APPEALS) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 15,98,027/- WHEN, O N THE CONTRARY, I. OUT OF SAID AMOUNT, RS. 6,40,000/- RECEIVED TOWARDS SPECIFIC CORPUS DONATION FOR LAND & BUILDIN G FUND AND RS. 6,29,000/- RECEIVED AS LIFE MEMBERSHIP FEES UNDER SECTION 11(L)(D) OF THE INCOME TAX ACT,1 961 AND, RS. 5,37,448/- FROM INCOME OF RS. 10,62,147.44 2 EARNED BY ADARSH SHIKSHA SANTHAN UNDER SECTION 11(1)(A) OF THE INCOME TAX ACT,1961. APPELLANT HAD PROVED APPLICATION OF FUNDS OF RS. 18,06,448/- TOWARDS CONSTRUCTION OF COMMUNITY HALL INCURRED UNDER SECTION 11(1)(A) OF INCOME TAX ACT, 1961. II. THE APPELLANT HAS BEEN CONSISTENTLY CLAIMING AN D WAS ALLOWED SIMILAR DEDUCTION IN PAST YEARS AND HAD CLAIM OF DEDUCTION OF RS. 53,79,294/- AND RS. 3,38,828/- UNDER SECTION 11 OF INCOME TAX ACT, 1961 IN AY: 2013-14 AND AY: 2012-13 AND THE SUPPORTING DOCUMENTS THEREOF WERE SUBMITTED IN ASSESSMENT PROCEEDING AND IT IS SETTLED LAW THAT NO AUTHORITY WHETHER QUASI JUDICIAL OR JUDICIAL CAN GENERALLY B E PERMITTED TO TAKE A DIFFERENT VIEW. BHARAT SANCHAR NIGAM LTD. VS. UNION OF INDIA 282 ITR 273 (SC.) III. APPELLANT HAD CORRECTLY CLAIMED THE DEDUCTION OF RS. 18,06,448/- AS APPLICATION OF FUND IN THE ITR SOFTWARE OF THE APPELLANT AND DUE TO GENUINE COMPUT ER ERROR AND THE DATA DID NOT GET TRANSFERRED TO THE I TR DOWNLOADED FROM THE SITE OF INCOME TAX DEPARTMENT. 3. APPELLANT HAD FURNISHED REVISED FORM 10B AND REVISED COMPUTATION OF INCOME UNDER RULE 46A TO L D. CIT(A) WHICH WAS NOT ADMITTED UNDER SECTION 250(4) OF INCOME TAX ACT, 1961, AND, CONFRONTED TO THE AO. 4. THE AFORESAID ADDITIONS OF RS. 15,98,027/- HAS BEEN CONFIRMED BASED ON AFTER IGNORING RELEVANT MATERIAL EVIDENCE AND / OR WAS BASED ON IRRELEVANT MATERIAL AND / OR WAS ARBITRARY WITHOUT ANY COGENT BASIS AND BASED ON MERE SURMISES AND IS PERVERSE AND BAD IN LAW. 3 5. THE APPELLANT HAD DISCHARGED THE ONUS THAT REST S ON IT AND THE LOWER AUTHORITIES HAS FAILED TO DISCH ARGE THE ONUS THAT REST ON THEM. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND LEGAL POSITION THE LD. CIT(A) ERRED IN CONFIRMING INTEREST UNDER SECTION 234B OF INCOME T AX ACT, 1961 PARTICULARLY, THE SAID INTEREST WAS NOT L EVIABLE AT ALL IN VIEW OF THE ARBITRARY ADDITION OF RS. 15, 98,027/- 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE, MODIFY, OR VARY ANY GROUND(S) OF APPEAL BEF ORE OR AT THE TIME OF HEARING OF APPEAL. 2. LD. COUNSEL FOR THE ASSESSEE FURTHER FILED THE FOLLOWING MODIFIED GROUND NO. 2(I) AND REQUESTED TO ADMIT THE SAME IN VIEW OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF NTPC VS. CIT 229 ITR 383 (SC) AND ADJUDICATE THE SAME. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE LEGAL POSITION THAT LD. CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 15,98,027/- WHEN, ON THE CONTRARY, I) RS. 6,40,000/- WERE RECEIVED TOWARDS SPECIFIC CORPUS DONATION FOR LAND & BUILDING FUND UNDER SECTION 11(1)(D) OF INCOME TAX ACT, 1961 AND RS. 6,29,000/- RECEIVED AS LIFE MEMBERSHIP FEES WERE CAPITAL RECEIPTS AND GROSS INCOME RS. 53,25,009/- WAS EARNED BY ADHARSH SHIKSHA SANSTHAN AND APPELLANT HAD PROVED APPLICATION OF FUNDS OF RS. 18,06,448/- TOWARDS CONSTRUCTION OF COMMUNITY HALL INCURRED UNDER SECTION 11(1)(A) OF INCOME TAX ACT, 1961. 3. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT THE ADDITIONS MADE WAS BASED ON NO MATERIAL / EVIDENCE AND / OR BY IGNORING RELEVANT MATERIAL / EVIDENCE AND / OR WAS BASED ON IRRELEVANT MATERIAL / EVIDENCE AND WAS BASED ON MERE SURMISE AND IS PERVE RSE AND BAD IN LAW. 4 HE FURTHER SUBMITTED THAT THE ADDITIONS WERE MADE I N THE ASSESSMENT ORDER WERE MADE HURRIEDLY AND AO ERRED IN NOT GIVIN G REASONABLE OPPORTUNITY TO THE ASSESSEE TO REBUT THE ADVERSE IN FERENCES DRAWN BY THE AO BEFORE FINALIZING OF THE ASSESSMENT ORDER. HE FU RTHER STATED THAT ASSESSEE IS HAVING ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM BEFORE THE REVENUE AUTHORITIES, IF THIS BENCH GRANTS AN OPPORTUNITY TO THE ASSESSEE TO DO THE SAME. HE REQUESTED THA T THE ISSUES IN DISPUTE ALONGWITH MODIFIED GROUND NO. 2(I) MAY BE SET ASIDE TO THE ASSESSING OFFICER TO DECIDE THE SAME, AFRESH, AS PER LAW, AF TER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS FOR PRODUCTION O F ALL THE NECESSARY EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSES SEE BEFORE THE ASSESSING OFFICER. 4.1 LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE REVENUE AUTHORITIES ALONGWITH THE ASSESSEES PA PER BOOKS CONTAINING PAGES 1-82 IN WHICH HE ATTACHED THE COPY OF SUMMAR IZED CHART SHOWING EXCESS APPLICATION OF INCOME OF RS. 2,08,421/-; CO MPUTATION OF INCOME FOR AY 2014-15; FORM 10B DATED 4.8.2014; WRITTEN SU BMISSIONS DATED 26.4.2018 BEFORE CIT(A) GENUINE COMPUTER ERROR AN D ABOVE FROM 10B WAS PUNCHED / FURNISHED REVISED FROM 10B AS ADDITIO NAL EVIDENCE UNDER RULE 46A OF I.T. RULES; CBDT CIRCULAR NO. 14 (XL 35 ) DATED 11.4.1955; REVISED FORM 10B DATED 26.4.2018; LIST OF MEMBERSHI P FEES OF RS. 1,24,000/-; WRITTEN SUBMISSION DATED 16.9.2016; LIS T OF CORPUS DONATION OF RS. 6,40,000/-; CORPUS DONATION RECEIPTS OF RS. 6,40,000/-; WRITTEN SUBMISSION DATED 26.8.2016; WRITTEN SUBMISSIONS DAT ED 16.11.2016; RS. 18,06,448/- IN FY: 2013-14 ON CONSTRUCTION OF BUILD ING (COMMUNITY HALL) FILED LEDGER ACCOUNT) COPY OF BILLS OF RS. 15,82,69 2/- AND IN ANOTHER SMALL PAPER BOOK WHICH CONTAINS PAGES 1-26 IN WHICH HE HAS ATTACHED VARIOUS DOCUMENTARY EVIDENCES I.E. REVISED COMPUTATION OF I NCOME BEFORE LD. CIT(A); COPY OF CHART SHOWING CAPITAL EXPENDITURE OF RS. 1858278 AND REVENUE EXPENDITURE OF RS. 4145400.56 INCURRED BY T RUST IN FY 2013-14; BALANCE SHEET OF ADHARSH SHIKSHA SANSTHAN FOR AY 20 13-14 SHOWING 5 CONSTRUCTION OF COMMUNITY HALL RS. 18,06,448/-; INC OME AND EXPENDITURE ACCOUNT OF ADHARSH SHIKSHA SANSTHAN FOR FY 2013-14; BALANCE SHEET AND INCOME AND EXPENDITURE OF THE KIDS ELEMENTARY NURSE RY SCHOOL FOR FY 2013-14; BYE LAWS OF TRUST REGARDING MEMBERSHIP OF TRUST AND COPY OF INCOME TAX RETURN AY 2014-15, WHICH ARE VERY VIT AL AND ESSENTIAL, BUT HAVE NOT BEEN PROPERLY CONSIDERED BY THE LOWER AUT HORITIES. I FIND THAT THE MODIFIED GROUND NO. 2(I) NEEDS TO BE ADMITTED, IN VIEW OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NTPC VS. CIT (SUPRA), AS SOME FACTUAL ERROR WAS INCORPORATED IN THE ORIGINAL GROUND NO. 2(I) OF THE ASSESSEE. HENCE, I ADMIT THE MODIFIED GROUND NO. 2 (I) AND IN THE INTEREST OF JUSTICE, I AM SETTING ASIDE THE ISSUES IN DISPUTE ALONGWITH THE MODIFIED GROUND 2(I) OF APPEAL TO THE ASSESSING OF FICER WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONSIDER ALL TH E DOCUMENTS / EVIDENCES FILED IN THE SHAPE OF PAPER BOOKS TO SUBS TANTIATE THE CLAIM OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 02.03.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED:02-03-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI