ACIT(E), New Delhi V. India International Centre, New Delhi

ITA 5190/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2055 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JANARDAN DAS
• Assessee Lawyers: ANGAD GULATI
• Keywords: Depreciation
• Section: 263; 143(3)

Judgement Text

ITA NO.- 5190 /DEL/2016. INDIA INTERNATIONAL CENTRE PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: C: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 5190 /DEL/2016 ( ASSESSMENT YEAR: 2009-10) ASSTT. COMMISSIONER OF INCOME TAX (E), CIRCLE1(1), E-2 BLOCK, PRATYAKSH KAR BHAWAN, NEW DELHI-110002. VS. INDIA INTERNATIONAL CENTRE, 40, MAX MULLER MARG, LODHI ESTATE, NEW DELHI-110003. PAN NO: AAATI0669C APPELLANT RESPONDENT REVENUE BY : SHRI JANARDAN DAS, SR. DR ASSESSEE BY : SHRI ANGAD GULATI, ADV. ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE IMPUGN ED ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 40 (EXEMPTION) , NEW DELHI, [LD. CIT(A), FOR SHORT], DATED 08.07.2016 FOR ASSESSMENT YEAR 2009-1 0. THE GROUNDS OF APPEAL ARE AS UNDER: 1. LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE BY IGNORING THE FACT THAT THE ACTIVATES OF THE ASSESSEE FALLS W ITHIN THE PURVIEW OF COMMERCIAL ACTIVITIES AS IT HAD PROVIDED BENEFITS O NLY TO SELECTED PERSONS AND NOT TO PUBLIC AT LARGE. THESE ACTIVITIES, WITH ANY STRETCH TO THE IMAGINATION, CANNOT BE CALLED AS CHARITABLE ACTIVIT Y WITHIN THE PURVIEW OF SECTION 2(15) OF THE ACT. ALSO, REVENUE PREFERRED A N APPEAL BEFORE ITA NO.- 5190 /DEL/2016. INDIA INTERNATIONAL CENTRE PAGE 2 OF 5 HONBLE HIGH COURT AGAINST THE DECISION OF ITAT IN ASSESSEES FAVOUR ON THE ISSUE, IN EARLIER YEAR. 2. LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF T HE ASSESSEE BY IGNORING THE IGNORING THE FACT THAT MERELY BEING NOTIFIED U/ S. 10(23C)(IV) DOES NOT MAKE ASSESSEE ENTITLED TO CLAIM EXEMPTION TILL IT I S PROVED THAT THE ACTIVITIES CARRIED OUT BY IT ARE WITHIN THE SCOPE O F ACTIVITIES ENUMERATED IN THE SAID SECTION. THE ASSESSEE INSTITUTION IS ALSO HIT BY 7 PROVISO TO SECTION 10(23C) AS THE ACTIVITIES OF SALE OF FOOD A ND BEVERAGES AND LICENSE FEE ETC. ARE THE ACTIVITY OF PROFIT OR GAIN OF BUSINESS WHICH IS NOT INCIDENTAL TO THE ATTAINMENT OF ITS OBJECTIVE FOR W HICH IT HAS BEEN MAINTAINING ACCOUNTS FOR THE SAID ACTIVITY. ALSO RE VENUE PREFERRED AN APPEAL BEFORE HONBLE HIGH COURT AGAINST THE DECISI ON OF ITAT IN ASSESSEES FAVOUR ON THIS ISSUE, IN EARLIER YEAR. 3. LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF T HE ASSESSEE BY IGNORING THE FACT THAT ALLOWANCE OF DEPRECIATION ON THE FIXE D ASSETS ACQUISITION OF WHICH HAS BEEN ALLOWED AS APPLICATION OF INCOME IN EARLIER YEARS WILL TANTAMOUNT TO DOUBLE DEDUCTION. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR A MEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. (B) ORIGINAL ASSESSMENT ORDER DATED 26.12.2011 WAS PAS SED BY ASSESSING OFFICER U/S 143(3) OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHO RT) WHEREIN INCOME OF THE ASSESSEE WAS ASSESSED AT NIL. THIS ASSESSMENT ORDER WAS SET ASI DE BY LEARNED DIRECTOR OF INCOME TAX (EXEMPTION) VIDE REVISION ORDER U/S 263 OF I.T. ACT; IN PURSUANCE OF WHICH A FRESH CONSEQUENTIAL ASSESSMENT ORDER DATED 31.03.2015 OF I.T. ACT WAS PASSED BY THE ASSESSING OFFICER U/S 263/143(3) OF I.T. ACT AND ASSESSEES I NCOME WAS ASSESSED AT RS. 3,36,58,900/. THE ASSESSEES APPEAL AGAINST THE AFORESAID FRESH A SSESSMENT ORDER DATED 31.03.2015 WAS ALLOWED BY LD. CIT(A) VIDE THE AFORESAID IMPUGNED O RDER DATED 08.07.2016. THE PRESENT APPEAL BEFORE INCOME TAX APPELLATE TRIBUNAL, (ITAT , FOR SHORT) HAS BEEN FILED BY REVENUE AGAINST THE AFORESAID IMPUGNED ORDER DATED 08.07.2016 OF LD. CIT(A). IN THE COURSE OF APPELLATE PROCEEDINGS IN ITAT, A COPY OF ORDER DATED 11.05.2015 OF ITAT FOR AY ITA NO.- 5190 /DEL/2016. INDIA INTERNATIONAL CENTRE PAGE 3 OF 5 2009-10 IN ASSESSEES APPEAL VIDE ITA NO.- 3124/DEL /2014, QUASHING THE AFORESAID ORDER PASSED UNDER SECTION 263 DATED 11.05.2015 WAS FILED FROM ASSESSEES SIDE. (C) AT THE TIME OF HEARING BEFORE US, REPRESENTATIVES OF BOTH SIDES [LD. COUNSEL FOR ASSESSEE AS WELL AS LD. DEPARTMENTAL REPRESENTATIVE ] WERE IN AGREEMENT, THAT ORDER U/S 263 OF I.T. ACT HAVING ALREADY BEEN QUASHED BY TRIB UNAL; THE AFORESAID FRESH CONSEQUENTIAL ASSESSMENT ORDER DATED 31.03.2015 PASSED IN PURSUAN CE OF THE AFORESAID ORDER U/S 263 OF I.T. ACT HAS NO LEGS TO STAND BEING NON EST, AND VOID AT PRESENT. ACCORDINGLY, AFTER HEARING BOTH SIDES, AND AFTER PERUSAL OF RECORD, WE ARE OF THE VIEW THAT THIS APPEAL BY REVENUE ALSO HAS NO LEGS TO STAND AT PRESENT, BEING CONNECTED WI TH AFORESAID CONSEQUENTIAL ASSESSMENT ORDER U/S 263 / 143(3) OF I.T. ACT, WHICH AS AFORES AID IS NON EST AND VOID AT PRESENT. WHEN AN ASSESSMENT ORDER IS HELD TO BE NON EST / VOID; REVENUES APPEAL BASED ON SUCH AN ASSESSMENT ORDER HAS NO FORCE OF LAW, AND DESERV ES TO BE DISMISSED AT THE OUTSET. ACCORDINGLY, WE DISMISS THIS APPEAL OF REVENUE, UNH ESITATINGLY. (C.1) IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 06/9/2019 SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06/9/2019 (POOJA) ITA NO.- 5190 /DEL/2016. INDIA INTERNATIONAL CENTRE PAGE 4 OF 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.- 5190 /DEL/2016. INDIA INTERNATIONAL CENTRE PAGE 5 OF 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER