Bethany Convent Provincial House, Trivandrum V. Deputy Director of Income Tax (Exemption), Trivandrum

ITA 48/COCH/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8231 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 10-03-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 28-01-2009
• Court: TRIBUNAL
• Department Lawyers: T J VINCENTJR
• Keywords: Salary income; Opportunity of being heard; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN. BEFORE SHRI N. VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.48/COCH/2009 ASSESSMENT YEAR:2005-06 BETHANY CONVENT PROVINCIAL HOUSE, NALANCHIRA, TRIVANDRUM. PA NO. AAAAAP 3970 F VS. THE DY. DIRECTOR OF INCOME-TAX(EXEMPTION), TRIVANDRUM. (APPELLANT) (RESPONDENT) PETITIONER BY SHRI MATHEW JOSEPH RESPONDENT BY SHRI T.J. VINCENT,JR.D.R. O R D E R PER N. VIJAYAKUMARAN,J.M: THIS IS AN APPEAL BY THE ASSESSEE, VIZ. BETHANY CONVENT PROVINCIAL HOUSE, NALANCHIRA, TRIVANDRUM. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT(APP EALS)-I AT TRIVANDRUM DATED 31-10-2008 RELATING TO THE ASSESSM ENT YEAR 2005-06. THE APPEAL ARISES OUT OF THE ASSESSM ENT COMPLETED U/S.143(3) OF THE I.T.ACT,1961. 2. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE IS A CONVENT HOUSE INHABITED BY SISTERS OF THE ORDER OF CHRIST. ASSESSEE FILED ITS RETURN OF INCOME DECLARING NIL I NCOME. ITA. NO. 48/COCH/2009 2 ASSESSMENT WAS COMPLETED ON A TOTAL INCOME OF RS.31,48,170/-. ACCORDING TO THE ASSESSEE, THE AS SESSING OFFICER HAS TREATED THE CORPUS DONATION RECEIVED BY WAY OF SALARY, PENSION, PATRIMONY ETC. AMOUNTING TO RS.201,30,073/- AS INCOME AND FURTHER DISALLOWED TH E CAPITAL EXPENDITURE OF RS.28,211/-. THE CIT(APPEALS) CONF IRMED THE ADDITION AND DISALLOWANCE. 3. WE HAVE HEARD THE PARTIES TO THE DISPUTE AND PER USED THE ENTIRE MATERIALS AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE ORDERS OF INCOME-TAX AUTHORITIES. WHE THER THE AMOUNT SHOWN CAN BE INCLUDED IN THE CAPITAL FUND OR WHETHER THE ABOVE AMOUNTS PARTAKES THE CHARACTER OF INCOME HAS TO BE EXPLAINED WITH RELEVANCE TO THE REQUEST MADE BY THE CONCERNED PERSON, AND WHETHER IT WAS TOWARDS THE CO RPUS OR IT CAN TAKE THE CHARACTER OF THE INCOME HAS TO BE E XPLAINED AND IT SHOULD BE EXAMINED. THE ASSESSMENT ORDER A LSO IS SILENT ON THIS VITAL ASPECT. WHETHER SALARY, PENSIO N, PATRIMONY, ETC. CAN BE CONSIDERED AS CAPITAL CONTRI BUTION TOWARDS CORPUS FUNDS REQUIRES INVESTIGATION WITH RE LEVANCE TO THE FACTS OF EACH CASE. HENCE, WE HAVE NO HESI TATION IN ACCEPTING THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE, PARTICULARLY THAT THE ASSESSEE IS A CONVENT HOUSE I NHABITED BY SISTERS OF THE ORDER OF CHRIST, UNMARRIED PEOPLE WHO LEFT ITA. NO. 48/COCH/2009 3 THEIR HOMES, STAYING WITH SIMILAR SISTERS IN HOUSES OR CONVENTS. HENCE, THE ASSESSING OFFICER HAS TO EXA MINE ITEM BY ITEM OF THE FOREIGN CONTRIBUTION APPEARING IN TH E INCOME AND EXPENDITURE ACCOUNT, WHETHER THIS CAN BE ADDED TO THE CORPUS OF THE CONVENT AS PER THE GENERAL INSTRUCTIO N GIVEN BY SALARY INCOME OF THE SISTERS, ETC, REQUIRES VERI FICATION. HENCE, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) A ND REMIT THE ISSUE BACK TO THE ASSESSING OFFICER FOR PROPER ADJUDICATION, IN ACCORDANCE WITH LAW. IT IS NEEDL ESS TO MENTION THAT THE ASSESSING OFFICER SHOULD AFFORD SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (SANJAY ARORA) (N.VIJA YKUMARAN) ACCOUNTANT MEMBER JUDICIA L MEMBER ERNAKULAM, DATED THE 12 TH MARCH,2010. PM. COPY FORWARDED TO: 1. BETHANY CONVENT PROVINCIAL HOUSE, NALANCHIRA,TVM . 2. THE DY. DIRECTOR OF INCOME-TAX(EXEMPTION),TRIVAN DRUM. 3. CIT., TRIVANDRUM. 4. CIT(A)-I,TRIVANDRUM./5. D.R.