IILM Foundation Academy, Gurgaon V. DCIT, New Delhi

ITA 5057/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2401 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 26-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PUNEET CHUGH
• Keywords: Business income; Opportunity of being heard
• Section: 11; 234B; 80G; 12A; 12AA

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH C, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 5057/DEL/2016 ASSESSMENT YEAR: 06.03.2019 IILM FOUNDATION ACADEMY, PLOT NO. 69, SECTOR-53, VILLAGE WAZIRABAD, GURGAON. PAN- AACCI0734J (APPELLANT) VS. DCIT, CIRCLE 1(1), NEW DELHI (RESPONDENT) APPELLANT BY SH. PUNEET CHUGH, ADVOCATE RESPONDENT BY SH.AMIT KATOCH, SR. DR ORDER PER L.P. SAHU, A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-2, GURGAON DATED 15.07.2016 ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS -2), GUR GAON. CONFIRMING THE INCOME OF RS. 51,81,080//- U/S 143 ( 3) OF THE I TAX ACT, 1961 BY THE AO, IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE IN COME REJECTING THE CONTENTION OF THE ASSESSEE THAT ITAT HAS DIRECTE D THAT APPELLANT IS ELIGIBLE U/S 11/12 OF THE TAX ACT AND CONSEQUENTL Y SHALL BE GRANTED REGISTRATION UNDER SECTION 12AA AND 80G OF THE I TAX ACT. DATE OF HEARING 06.03.2019 DATE OF PRONOUNCEMENT 12.03.2019 ITA NO. 5057/DEL/2016 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THAT THE EXCESS OF INCOME OVER EXPENDITURE OF RS. 51,81,080/- AS BUSINESS INCOME. THE AFORESAID ACTION IS ERRONEOUS AS LEARNED CIT (A) FAILED TO APPRECIATE THAT PURSUANT T O BINDING DIRECTION OF TRIBUNAL, THE APPELLANT IS ELIGIBLE FOR EXEMPTION U/S 11/12 OF THE I TAX ACT, NOTWITHSTANDING THE SPECIFI C REGISTRATION CERTIFICATE TO THE ABOVE SAID ORDER HAS NOT BEEN IS SUED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT PASSING ANY O RDER OVER CHARGING OF INTEREST U/S 234B BY AO. 5. THAT THE CIT (A) FAILED TO APPRECIATE THE FACT THA T THE APPEALS FILED BY DEPARTMENT BEARING ITA NO. 198 OF 2011 AND ITA N O. 200 OF 2011 WERE PENDING CONSIDERATION BEFORE THE HONBLE PUNJAB AND HARYANA HIGH COURT ON THE ISSUE OF GRANT OF SECTION 12AA AND BENEFITS UNDER SECTION 80G OF THE INCOME TAX, 1956. THESE APPEALS HAVE BEEN DISMISSED BY THE HONBLE PUNJAB AND HARYA NA HIGH COURT AGAINST THE DEPARTMENT AND IN FAVOUR OF THE ASSESSE E. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME ON 28.09.2012 IN ITR 7 DECLARING NIL INCOME CLAIMING EXEMPTION U/S. 11/12 OF THE IT ACT. THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ALSO ISSUED. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO PRODUCE CERTIFICATE U/S. 12A GRANTED BY THE COMMISSIONER OF INCOME TAX FOR THE RELEVANT ASSESSMENT YEAR, BUT THE ASSESSEE COULD NO T FURNISH THE SAME AND RELIED THAT THE CIT HAS NOT GRANTED REGISTRATION AN D AGAINST THE ORDER OF LD. CIT, APPEAL HAS BEEN MADE BEFORE THE ITAT, NEW DELH I, WHO HAS DIRECTED VIDE HIS ORDER DATED 31.08.2010 IN ITA NO. 758 & 759/DEL /2010 TO GRANT REGISTRATION U/S. 12A, BUT TILL DATE NO REGISTRATIO N HAS BEEN GRANTED. THE ASSESSING OFFICER AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HELD THAT ITA NO. 5057/DEL/2016 3 THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S. 11 & 12. HE RESULTED THAT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER. 3. THE LD. DR, ON THE OTHER HAND, THOUGH SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW, BUT HAS NO OBJECTION ON THE REQU EST OF THE ASSESSEE TO REMIT THE CASE BACK TO THE ASSESSING OFFICER. 4. AFTER HEARING BOTH THE SIDES AND PERUSING THE MA TERIALS AVAILABLE ON RECORD, WE FIND THAT THE LD. CIT(EXEMPTION) HAS GRA NTED REGISTRATION U/S. 12AA OF THE IT ACT, 1961 EFFECTIVE FROM ASSESSMENT YEAR 2010-11 ONWARDS. ACCORDINGLY, ON CERTAIN TERMS AND CONDITIONS, THE A SSESSEE IS ELIGIBLE FOR EXEMPTION U/S. 11/12 OF THE ACT. WE OBSERVE FROM TH E ORDER OF THE ASSESSING OFFICER THAT THE EXEMPTION WAS NOT GRANTED FOR WANT OF REGISTRATION U/S. 12A.THEREFORE, THIS MATTER IS SENT BACK TO THE ASSE SSING OFFICER TO DECIDE THE CLAIM OF EXEMPTION MADE BY THE ASSESSEE IN THE LIGH T OF REGISTRATION GRANTED TO THE ASSESSEE AS PER LAW. NEEDLESS TO SAY, THE ASSES SEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12.03.2019. SD/- SD/- (H.S. SIDHU) (L.P. SA HU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: *AKS*