B.L.D.E.University, Bijapur V. ACIT, Bijapur

ITA 500/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0168 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BIPIN C N JT
• Assessee Lawyers: S ANNAMALAI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B; 12A; 201(1); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.499/BANG/2014 ASSESSMENT YEAR : 2007-08 THE PRINCIPAL, BLDE ASSOCIATIONS B.M. PATIL MEDICAL COLLEGE, SOLAPUR ROAD, BIJAPUR 586 103. TAN: BLRB 03162F VS. THE INCOME TAX OFFICER, TDS WARD. BELGAUM. APPELLANT RESPONDENT ITA NO. 500/BANG/2014 ASSESSMENT YEAR : 2009-10 BLDE UNIVERSITY, SMT. BANGARAMMA SAJJAN CAMPUS, SHOLAPUR ROAD, BIJAPUR 586 103. PAN: AAAAB 7055P VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, BIJAPUR. APPELLANT RESPONDENT APPELLANTS BY : SHRI S. ANNAMALAI, ADVOCATE RESPONDENTS BY : SHRI BIPIN C.N., JT. CIT(DR) DATE OF HEARING : 04.07.2016 DATE OF PRONOUNCEMENT : 29.07.2016 ITA NOS.499 & 500/BANG/2014 PAGE 2 OF 6 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.499/BANG/2014 THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(APPEALS), BELGAUM DATED 4.2.2014 FOR THE ASSESS MENT YEAR 2007-08 INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) TO THE EXTENT IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, NATURAL JUSTICE, PROBABILI TIES ON FACTS AND IN CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FAILED TO APPRECIATE THAT THE APPELLANT IS NOT LIAB LE TO PAY INTEREST A SUM OF RS.4,72,24L/- UNDER SECTION 20L(LA) OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D UNDER THE PROVISIONS OF SECTION 201 (LA) OF THE ACT WHEN THE PROCEEDINGS UNDER THE PROVISIONS OF SECTION 201 (1) WERE DROPPE D ON FACTS AND IN CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FAILED TO APPRECIATE THAT ONCE THE RECIPIENT OF THE AMOUNT I.E., B.LD.E ASSOCIATION IS NOT AT ALL LIABLE TO PAY ANY TAX THE QUESTION OF PAYMENT OF ANY INTEREST FOR ANY DELAYED PAYMENT DOES NOT ARISE ON THE FACTS AND CIRCUMSTANCES OF TH E CASE. 5. THE APPELLANT CRAVES TO ADD, ALTER, DELETE OR SU BSTITUTE ANY OF THE GROUNDS URGED ABOVE. 6. IN VIEW OF THE ABOVE AND OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AN D EQUITY. ITA NOS.499 & 500/BANG/2014 PAGE 3 OF 6 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT THE PROCEEDINGS U/S. 201(1) WERE DR OPPED BY THE ASSESSING OFFICER HIMSELF, HAVING HELD THAT THERE W AS NO LIABILITY TO DEDUCT TAX AT SOURCE UPON THE ASSESSEE, BUT HAS LEVIED INT EREST AS PROVIDED U/S. 201(1A) OF THE ACT. ONCE THE ASSESSEE IS NOT LIABL E TO TAX DEDUCTION AT SOURCE (TDS), THERE IS NO QUESTION OF ITS PAYMENT W ITHIN THE REASONABLE TIME AND ON ACCOUNT OF NON-PAYMENT, INTEREST U/S. 2 01(1A) CANNOT BE CHARGED. WE ARE, THEREFORE, OF THE VIEW THAT UNDIS PUTEDLY THE ASSESSEE WAS NOT HELD TO BE IN DEFAULT AS THERE IS NO LIABIL ITY TO TDS, THEREFORE, INTEREST U/S. 201(1A) CANNOT BE CHARGED. ACCORDING LY, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) AND DELETE THE INTEREST U /S. 201(1A) OF THE ACT. 3. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED. ITA NO.500/BANG/2014 4. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(APPEALS), BELGAUM DATED 4.2.2014 FOR THE ASSESS MENT YEAR 2009-10 INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) TO THE EXTENT IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, NATURAL JUSTICE, PROBABILI TIES ON FACTS AND IN CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D ON AN INCOME OF RS.14,76,360/- AGAINST NIL RETURNED INCOM E ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE. ITA NOS.499 & 500/BANG/2014 PAGE 4 OF 6 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT AVAILING THE APPEL LANT A REASONABLE OPPORTUNITY OF BEING HEARD WHICH IS IN V IOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE FACTS AND CIRC UMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT JUSTIFIED IN HOLDING THAT THE ACTIVITY UNDERTAK EN BY THE APPELLANT IS HIT BY THE PROVISO TO SECTION 2(15) OF THE ACT WHEN ADMITTEDLY THE ACTIVITY OF THE APPELLANT IS EDUCATI ON AND MEDICAL AND CONSEQUENTLY THE PROVISO TO SECTION 2(15) IS NO T APPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE CASE 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING THE EXEMP TION TO THE APPELLANT ON THE INCOME OF THE PHARMACY IN ACCORDAN CE WITH THE LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WITHOUT PREJUDICE THE APPELLANT WAS ENTITLED TO EXEMPTION UNDER SECTION 11 OF THE ACT ON THE FACTS AND CIRCUM STANCES OF THE CASE. 7. THE APPELLANT DENIES ITSELF TO BE LIABLE TO BE C HARGED FOR INTEREST UNDER THE PROVISIONS OF SECTION 234A, 234B AND 234C OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT CRAVES TO ADD, ALTER, DELETE OR SU BSTITUTE ANY OF THE GROUNDS URGED ABOVE. 9. IN VIEW OF THE ABOVE AND OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AN D EQUITY. 5. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE TRIBUNAL IN WHICH REGISTRATION DENIED BY THE CIT WAS ALLOWED BY THE TRIBUNAL. A COPY OF THE ORDER OF THE TRIBUNAL IS ALSO PLACED ON RECORD, WHEREFROM IT IS EVIDENT T HAT THE TRIBUNAL HAS ALLOWED REGISTRATION WITH EFFECT FROM THE IMPUGNED ASSESSMENT YEAR. ITA NOS.499 & 500/BANG/2014 PAGE 5 OF 6 WHEREAS, THE LOWER AUTHORITIES HAVE DENIED THE BENE FIT OF EXEMPTION HAVING RELIED UPON THE ORDER OF THE CIT, WHEREBY HE DENIED REGISTRATION U/S. 12A OF THE ACT. SINCE REGISTRATION HAS BEEN FINALLY GRANT ED TO THE ASSESSEE, A FRESH ASSESSMENT IS REQUIRED TO BE PASSED WITH RESP ECT TO EXEMPTION CLAIM MADE BY THE ASSESSEE. WE, THEREFORE, SET ASIDE TH E ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME THE ASSESSMENT DE NOVO IN THE LIGHT OF THE FACT THAT THE REGISTRATION U/S. 12A OF THE ACT HAS BEEN GRANTED T O THE ASSESSEE. 6. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. THUS, THE APPEAL OF THE ASSESSEE IN ITA 499/BANG /2014 IS ALLOWED, WHEREAS THAT OF THE ASSESSEE IN ITA NO.500/BANG/201 4 IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JULY, 2016. SD/- SD/- ( INTURI RAMA RAO ) (SUNIL KUMAR YAD AV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 29 TH JULY, 2016. /D S/ ITA NOS.499 & 500/BANG/2014 PAGE 6 OF 6 COPY TO: 1. APPELLANTS 2. RESPONDENTS 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.