Agricultural Market Committee, Visakhapatnam V. THE ITO, WARD - 4(1), Visakhapatnam

ITA 52/VIZ/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6633 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 13-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SATYANANDAM
• Assessee Lawyers: B V RAO
• Keywords: Revised return
• Section: 12A; 12AA; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 6 12 / VIZ /201 3 (ASST. YEAR : 20 08 - 0 9 ) AND ITA NO. 52/VIZ/2014 (ASST. YEAR : 2007 - 08) THE AGRICULTURAL MARKET COMMITTEE, D.NO. 49 - 55 - 19, VIDYUTHNAGAR, NEAR PORT STADIUM, VISAKHAPATNAM. V S . IT O , WARD - 4 (1), VISAKHAPATNAM. PAN NO. ACOPK 0638 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.V. RAO CA . DEPARTMENT BY : SHRI T. SATYANANDAM SR. DR DATE OF HEARING : 19 / 0 9 /201 7 . DATE OF PRONOUNCEMENT : 27 / 0 9 /201 7 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THESE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF LD.CIT(A), VISAKHAPATNAM DATED 26/06/2013 & 11/12/2013 FOR THE ASSESSMENT YEAR S 2008 - 09 & 2007 - 08 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE IS AN AGRICULTURAL MARKET COMMITTEE, FILED ITS RETURN OF INCOME DECLARING NIL INCOME BY CLAIMING EXEMPTION UNDER SECTION 10(26AAB) OF 1,56,43,592/ - . THE ASSESSING OFFICER HAS HELD THAT ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION. 2 ITA NO. 612/VIZ/2013 ITA NO. 52/VIZ/2014 ( THE AGRICULTURAL MARKET COMMITTEE ) 3 . ON APPEAL, LD. CIT(A) HAS OBSERVED THAT THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 10(26AAB) IN THE ORIGINAL RETURN FILED , THOUGH THE STATUTE DID NOT PROVIDE FOR SUCH EXEMPTION FOR THE YEAR UNDER CONSIDERATION. IT HAS BEEN RESOLVED BY THE HON'BLE AP HIGH COURT THAT THE A SSESSEE WOULD NOT BE ELIGIBLE FOR EXEMPTION UNDER SECTION 10(26AAB) RETROSPECTIVELY. CONSEQUENTLY , THE ASSESSEE HAS CHANGED ITS STAND AND HAS CLAIMED EXEMPTION UNDER SECTION 11 DURING THE APPELLATE PROCEEDINGS BY STATING THAT IT GOT ITS ACCOUNTS AUDITED F OR THE PURPOSE OF SECTION 12A, SUBSEQUENT TO THE ASSESSMENT. THE HON'BLE APEX COURT HAS CATEGORICALLY HELD IN THE CASE OF GOETZ (INDIA) LTD. VS. CIT THAT AN INCOME TAX AUTHORITY CANNOT ENTERTAIN A CLAIM FOR DEDUCTION, OTHERWISE THAN BY FILLING A REVISED RETURN. FURTHER, THE CLAIM OF EXEMPTION UNDER SECTION 11 WAS NOT SUBJECT MATTER OF ASSESSMENT BEFORE THE ASSESSING OFFICER AND NO MATERIAL FOR SUCH CLAIM WAS AVAILABLE BEFORE THE ASSESSING OFFICER. THE HON'BLE APEX COURT IN THE CASE OF ACIT VS. GURJARGRAVURES P. LTD. [111 ITR 001 (SC)] HELD THAT A CLAIM WHICH WAS NOT SUBJECT MATTER OF ASSESSMENT, CANNOT BE EXAMINED BY THE CIT(A). THIS VIEW WAS FOLLOWED BY THE HON'BLE AP HIGH COURT IN THE CASE OF CIT VS. LATE BEGUM NOOR BANU ALLADDIN (116 ITR 778) HOLDING THAT THE ADDITIONAL GROUND SHOULD RELATE TO THE SUBJECT MATTER OF APPEAL , WHICH IN TURN , IS LINKED TO THE SUBJECT MATTER OF THE ORDER PASSED. AS THE CLAIM OF EXEMPTION UNDER SECTION 11 IS NOT A SUBJECT MATTER OF ASSESSMENT AND MATERIAL FOR SUCH CLAIM WAS NOT BEFORE THE ASSESSING OFFICER, THE 3 ITA NO. 612/VIZ/2013 ITA NO. 52/VIZ/2014 ( THE AGRICULTURAL MARKET COMMITTEE ) ADDITIONAL GROUND RAISED , IS NOT ENTERTAINED . ACCORDINGLY, THIS GROUND OF APPEAL RAISED BY THE ASSESSE E IS DISMISSED. 4 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 5. LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT BEFORE THE ASSESSING OFFICER ASSESSEE CLAIMED EXEMPTION UNDER SECTION 10(26AAB), BUT THE SAME WAS REJECTED BY THE ASSESSING OFFICER. SUBSEQUENTLY, THE ASSESSEE FILED AN APPLICATION BEFORE THE COMMISSIONER FOR GRANT OF REGISTRATION UNDER SECTION 12A, THE S AME IS GRANTED W.E.F. 01/04/2007 , WHICH WAS POINTED OUT FROM THE PAPER BOOK AT PAGE NOS. 7 & 8 AND SUBMITTED THAT THE ASSESSEE WAS NOT CLAIMED BEFORE THE ASSESSING OFFICER FOR THE REASON THAT 12A APPLICATION IS PENDING BEFORE THE COMMISSIONER AND SUBMITTED THAT ONCE ASSESSEE IS HAVING 12A, HIS INCOME IS EXEMPT FROM 11 OF THE ACT. THEREFORE, HE PRAYED THAT THE ISSUE MAY BE REMITTED BACK TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION IN ACCORDANCE WITH LAW . 6 . ON THE OTHER HAND, L EARNED DEPARTMENTAL REPRESENTATIVE HAS NOT RAISED ANY SERIOUS OBJECTION. 7 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8 . THE ASSESSEE FILED NIL RETURN BY CLAIMING EXEMPTION UNDER SECTION 10(26AAB) OF THE ACT. THE ASSESSING OFFICER REJECTED THE CLAIM MADE BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE IS NOT ELIGIBLE FOR 4 ITA NO. 612/VIZ/2013 ITA NO. 52/VIZ/2014 ( THE AGRICULTURAL MARKET COMMITTEE ) EXEMPTION . ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 11 IN VIEW OF 12A REGIS T RATION GRANTED TO HIM. THE LD. CIT(A) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE OBSERVED THAT THE ASSESSEE HAS NOT CLAIMED EXEMPTION UNDER SECTION 11 BEFORE THE ASSESSING OFFICER, THEREFORE, I T CANN OT BE CONSIDERED AT APPELLATE STAGE, HENCE, THE SAME IS DISMISSED. WE FIND THAT THE ASSESSEE HAS NOT MADE ANY CLAIM UNDER SECTION 11 FOR THE REASON THAT HE IS NOT HAVING REGISTRATION UNDER SECTION 12AA OF THE ACT. SUBSEQ UE NTLY, THE COMMISSIONER HAS GRANT ED REGISTRATION TO THE ASSESSEE W.E.F. 01/04/2007, THEREFORE, THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 11 BEFORE THE LD. CIT(A). IN OUR OPINION, ONCE THE ASSESSEE HAS GOT REGISTRATION UNDER SECTION 12A FOR THE YEAR UNDER CONSIDERATION, HIS CASE UN DER SECTION 11 HAS TO BE CONSIDERED. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE ASSESSING OFFICER TO DECIDE THE CASE OF THE ASSESSEE DENOVO IN ACCORDANCE WITH LAW. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON TH IS 2 7 T H DAY OF SEP . , 201 7 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 7 T H SEPTEMBER , 201 7 . VR/ - 5 ITA NO. 612/VIZ/2013 ITA NO. 52/VIZ/2014 ( THE AGRICULTURAL MARKET COMMITTEE ) COPY TO: 1. THE ASSESSEE - THE AGRICULTURAL MARKET COMMITTEE, D.NO. 49 - 55 - 19, VIDYUTHNAGAR, NEAR PORT STADIUM, VISAKHAPATNAM . 2. THE REVENUE ITO, WARD - 4(1), VISAKHAPATNAM. 3. THE CIT - 2, VISAKHAPATNAM. 4. THE CIT(A) , VISAKHAPATNAM. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.