ACIT, Karnal V. Dyal Singh College Trust Society, Karnal

ITA 5213/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4048 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Period of limitation
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL ITA NO. 5213(DEL)/2010 ASSESSMENT YEAR: 2007-08 ASSTT. COMMISSIONER OF DAYA L SINGH COLLEGE TRUST SOCIETY, INCOME-TAX, CIRCLE KARNAL. VS. DAYAL SI NGH COLLEGE PREMISES, KARNAL. PAN-AAATD1865C (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y. KAKKAR, SR. DR RESPONDENT BY: SHRI GIRISH ANEJA, C.A. ORDER PER K.G. BANSAL : AM THE ONLY GROUND TAKEN BY THE REVENUE IN THIS A PPEAL IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE L D. CIT(APPEALS) ERRED THAT THE ORDER OF THE AO CANNOT BE SUSTAINED AS THE APPROVAL GRANTED TO THE ASSESSEE U/S 10(23)(VI) WAS AVAILABLE ON THE DATE OF PASSING THE ORDER U/S 143(3). IT IS MENTIONED THAT HE FAILED TO APPR ECIATE THAT THE AO HAD INTIMATED TO THE PRESCRIBED AUTHORITY THAT THE APPROVAL WAS LIABLE TO BE WITHDRAWN ON ACCOUNT OF THE FACT THAT THE ASSESS EE-SOCIETY EXISTED FOR THE PURPOSE OF PROFIT. ITA NO. 5213(DEL)/2010 2 2. THE FINDING OF THE AO IS THAT THE ASSESSEE DO ES NOT EXIST SOLELY FOR THE PURPOSE OF EDUCATION BUT ALSO FOR PROFIT AS THE INCOME AND EXPENDITURE ACCOUNT OF THE ASSESSEE HAS CONSIST ENTLY SHOWN SURPLUS IN ASSESSMENT YEARS 2002-03 TO 2008-09. THE SURPLUS FOR THIS YEAR AMOUNTS TO RS. 1,76,80,211/-. IN VIEW OF THIS THE CHIEF C OMMISSIONER OF INCOME- TAX, PANCHKULA HAS BEEN REQUESTED TO WITHDRAW THE APPROVAL GRANTED TO THE ASSESSEE U/S 10(23C)(VI). THE ASSESSMENT OF THE SURPLUS HAS BEEN MADE SUBJECT TO THE ORDER TO BE PASSED BY THE LD. CHIE F COMMISSIONER. 3. AS AGAINST THE AFORESAID, THE FINDING OF THE L D. CIT(APPEALS) IS THAT THE ASSESSEE WAS APPROVED FOR EXEMPTION U/S 10 (23C)(VI) BY THE LD. CHIEF COMMISSIONER ON 1.12.2009 AND THE APPROVA L HAD NOT BEEN WITHDRAWN TILL THE PASSING OF THE ASSESSMENT ORDE R. THEREFORE, THE BENEFIT OF THE AFORESAID PROVISION CANNOT BE DENIED TO THE ASSESSEE. 4. BEFORE US, THE LD. DR RELIED ON THE ORDER OF THE AO WHILE THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE LD. CIT(APPEALS). 5. HAVING CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES, WE FIND THAT EXPLANATION-I OF SECTION 153(1), IN CLAUSE (IIA), PROVIDES THAT THE PERIOD ITA NO. 5213(DEL)/2010 3 COMMENCING FROM THE DATE ON WHICH THE AO INTIMAT ES THE PRESCRIBED AUTHORITY ABOUT THE CONTRAVENTION OF THE PROVISIO N CONTAINED IN SECTION 10(23C)(VI) AND ENDING WITH THE DATE ON WHICH THE COPY OF THE ORDER WITHDRAWING THE APPROVAL IS RECEIVED BY THE AO, SHALL BE EXCLUDED IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOS E OF SECTION 153. IN VIEW OF THIS PROVISION, THE AO OR THE LD. CIT(APPEALS ) OUGHT TO HAVE WAITED FOR THE RECEIPT OF THE ORDER OF THE LD. CHIEF C OMMISSIONER BEFORE TAKING A FINAL DECISION IN THE MATER OF GRANTING OR NOT G RANTING THE BENEFIT OF PROVISION OF SECTION 10(23C)(VI) TO THE ASSESSE E. THEREFORE, IT WILL BE IN THE INTEREST OF JUSTICE TO RESTORE THE MATTER TO T HE FILE OF THE AO, WHO MAY WAIT FOR THE ORDER OF THE LD. CHIEF COMMISSIONER I N THE MATTER AND THEREAFTER PASS THE ORDER AS PER LAW. 6. IN THE RESULT, THE APPEAL IS TREATED AS ALLO WED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 6 MAY, 2011. SD/- SD/- (C.L. SETHI) (K.G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 6TH MAY, 2011. SP SATIA ITA NO. 5213(DEL)/2010 4 COPY OF THE ORDER FORWARDED TO:- DAYAL SINGH COLLEGE TRUST SOCIETY,KARNAL. ACIT, CIRCLE KARNAL. CIT CIT(A), KARNAL. THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR .