M/s M.P.Pathaya Pustak Nigam, V. The ACIT 1 (1),

ITA 522/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1442 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K SINGH
• Keywords: Benefit of exemption; Set aside
• Section: 12A

Judgement Text

PAGE 1 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : N.A. STAY PETITION NOS. 4, 5 & 6/IND/2009 (ARISING OUT OF I.T.A.NOS. 519, 521 & 522/IND/2008) A.YS. : 2000-01, 2002-03 AND 2005-06 M.P.PATHYA PUSTAK NIGAM ACIT, BHOPAL VS 1(1), BHOPAL APPELLANT RESPONDENT PAN NO. : N.A. I.T.A.NOS. 519, 521 & 522/IND/2008 A.YS. : 2000-01, 2002-03 AND 2005-06 M.P.PATHYA PUSTAK NIGAM ACIT, BHOPAL VS 1(1), BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI PRAKASH JAIN, C.A. RESPONDENT BY : SHRI K.K.SINGH, CIT DR DATE OF HEARING : 13/11/2009 PAGE 2 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL O R D E R PER V.K. GUPTA, A.M. THESE STAY PETITIONS AND THE CONNECTED INCOME TAX A PPEALS BELONG TO THE SAME ASSESSEE, HENCE, THESE WERE HEARD TOGET HER AND THE SAME ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. FOLLOWING COMMON GROUNDS HAVE BEEN TAKEN IN ALL THE THREE APPEALS :- (1) THAT IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS BA D IN LAW AS WELL AS ON THE FACTS. IT IS BASED ON INCO RRECT INTERPRETATION OF LAW AND THE FACTS HAVE ALSO BEEN INCORRECTLY CONSTRUED. (2.1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) ERRED IN GRANTING EXEMPTION U/S 10(23C)(IIIAB) OF THE INCOME-TAX ACT, 1961, WITHOUT PROPERLY APPRECIAT9NG THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM. (2.2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) ERRED IN NOT RELYING ON THE ORDER OF HON'BLE I.T.A.T. THAT THE A IS EDUCATION INSTITUT ION PAGE 3 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL AND ACCORDINGLY ENTITLED FOR EXEMPTION U/S 10(23C)(IIIAB). (3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A) ERRED IN APPRECIATING THE FACT THAT ASSESSEES APPEAL AGAINST NON GRANTING OF EXEMPTION U/S 12A IS RESTORED BACK BY THE HON'BLE I.T.A.T. WITH THE DIRECTION TO PASS A SPEAKING ORDER. 4. FIRSTLY, THESE APPEALS FILED BY THE ASSESSEE HAD BE EN HEARD, BECAUSE THE ISSUE ARISING IN THESE APPEALS WAS COVE RED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASES FOR ASSESSMENT YEA RS 1999-2000, 2003- 04, 2004-05, 2006-07 ORDER DATED 4.11.2009, WHEREIN THE TRIBUNAL HAD RESTORED ALL THE IDENTICAL ISSUES RAISED IN THOSE A PPEALS TO THE FILE OF THE A.O., IN VIEW OF THE ORDER OF THE HON'BLE HIGH COUR T IN I.T.A.NO.56/03 DATED 2.4.2009. THE LEARNED COUNSEL, ACCORDINGLY, C ONTENDED THAT THE ISSUES RAISED, IN THIS APPEAL, COULD ALSO BE RESTOR ED BACK TO THE FILE OF THE A.O. ON SIMILAR LINES. THE LD. DEPARTMENTAL REPRESE NTATIVE COULD NOT CONTROVERT THE CLAIMS OF THE ASSESSEE. HOWEVER, HE PREFERRED TO RELY ON THE ORDER OF THE LD. CIT(A). 5. WE FIND THAT THE ISSUES RAISED IN THIS APPEAL ALSO AROSE BEFORE THE TRIBUNAL IN ASSESSEES APPEAL IN I.T.A.NO. 186/ IND/2009, 623 TO PAGE 4 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL 626/IND/07 AND THE TRIBUNAL VIDE ITS ORDER DATED 4. 11.2009 RESTORED ALL THOSE ISSUES TO THE FILE OF A.O. FOR ADJUDICATION A FRESH THEREOF, IN TERMS OF DIRECTIONS GIVEN BY THE HON'BLE HIGH COURT IN ASSE SSEES APPEAL IN I.T.A.NO. 56/03 DATED 2.4.2009. THE RELEVANT FINDIN GS OF THE TRIBUNAL ARE AS UNDER :- WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON THE FILE. IN THE LIGHT OF THE ABOVE, T HE RELEVANT PARA 18 OF THE AFORESAID ORDER DATED 2.4.2009 IS RE PRODUCED HEREUNDER :- IN VIEW OF THE AFORESAID ANALYSIS AND REGARD BEIN G HAD TO THE CONCEPT OF EDUCATIONAL PURPOSE AS IS UND ERSTOOD IN THE CONTEXT OF SECTION 10(22) OF THE ACT, WE ARE OF THE CONSIDERED OPINION THAT THE FORUMS BELOW HAVE REALL Y NOT APPLIED THEIR MIND TO THE RELEVANT ISSUE. IT IS WOR TH NOTHING THERE HAS BEEN NO DISSECTION OF THE ROLE PLAYED BY THE CORPORATION AND WHETHER ITS ACTIVITY HAS ANY NEXUS WITH THE EDUCATIONAL PURPOSE AS PER THE PRINCIPLES LAID DOWN BY THEIR LORDSHIPS OF THE APEX COURT AN D VARIOUS HIGH COURTS. WE ARE DISPOSED TO THINK THA T THERE HAS TO BE DETAILED ANALYSIS OF THE FACTS PERTAINING TO THE ACTIVITIES CARRIED OUT BY THE ASSOCIATION FROM YEAR TO YEAR AND THEREAFTER ARRIVE AT A CONCLUSION WHETHER THE A SSESSEE IS ENTITLED TO GET THE BENEFIT OF EXEMPTION. BE IT NOT ED, THE EXEMPTION NEED NOT BE IN ENTIRETY OR TOTALITY. THER E CAN BE A CASE WHERE THERE CAN BE A PARTIAL EXEMPTION IF THE INCOME OF THE PREVIOUS YEAR FALLS WITHIN THE BASIC CONCEPTUAL ITY OF SECTION 10(22) OF THE ACT. BEREFT OF THE AFORESAID ANALYSIS, THE ORDERS ARE UNSUSTAINABLE. HENCE, IT WOULD BE AP POSITE TO SET ASIDE THE ORDER PASSED BY THE FORUMS IN ALL TH E APPEALS AND REMIT THE MATTER TO THE A.O. TO CONSIDER THE CA SE AFTER AFFORDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE . IT WOULD BE OPEN TO THE ASSESSEE CORPORATION TO FILE REQUISI TE DOCUMENTS TO BRING THE CASE WITHIN THE PARAMETERS O F LAW WHICH WE HAVE REFERRED TO ABOVE. PAGE 5 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL IN THE LIGHT OF THE ABOVE AND ALSO THAT THE ORDER O F THE TRIBUNAL GRANTING REGISTRATION U/S 12A WAS NOT AVAI LABLE WITH THE A.O. WHILE FRAMING ASSESSMENT, THEREFORE, THE I MPUGNED GROUND IS REMANDED BACK TO THE FILE OF LD. A.O. ON IDENTICAL DIRECTIONS AS CONTAINED IN THE AFORESAID ORDER OF T HE HON'BLE HIGH COURT. NEEDLESS TO MENTION HERE THAT DUE OPPOR TUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE, CONSEQUEN TLY, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES ONLY. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. NOW WE SHALL TAKE UP THE APPEALS OF THE REVENUE ( I .T.A.NO. 623 TO 626/IND/2007). THE LD. REPRESENTATIVES FROM BOTH THE SIDES CANVASSED THAT THESE APPEALS MAY ALSO BE REMA NDED BACK TO THE FILE OF THE LD. A.O., THEREFORE, WITHOUT DEL IBERATING UPON THE ISSUE INVOLVED AND THE ASSERTION MADE BY THE L EARNED COUNSEL FROM BOTH SIDES, THESE APPEALS OF THE REVEN UE ARE ALSO REMANDED TO THE FILE OF THE LD. A.O., KEEPING IN VI EW THE ARGUMENTS/DECISION IN I.T.A.NO. 186/IND/2009 AND TH E DIRECTION OF THE HON'BLE JURISDICTIONAL HIGH COURT CONTAINED IN ORDER DATED 2.4.2009, THESE APPEALS OF THE REVENUE ARE AL SO ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY AL LOWED FOR STATISTICAL PURPOSES AND THAT OF THE REVENUE AR E ALSO ALLOWED FOR STATISTICAL PURPOSES. 6. THUS, ALL THE ISSUES RAISED IN THESE APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSE E STAND ALLOWED FOR STATISTICAL PURPOSES. 8. NOW, WE SHALL TAKE UP THE CONNECTED STAY PETITIONS FILED BY THE ASSESSEE. PAGE 6 OF 6 STAY PETITION NOS. 4, 5 & 6/IND/2009 M .P.PATHYA PUSTAK NIGAM, BHOPAL 9. IN VIEW OF OUR DECISION IN THE APPEALS FILED BY THE ASSESSEE HEREINABOVE, HAVE BECOME INFRUCTUOUS. HENCE, THE SA ME ARE DISMISSED AS INFRUCTUOUS. WE, HOWEVER, DIRECT THE LD. CIT DR TO INFORM THE CONCERNED A.O. NOT TO TAKE COERCIVE STEPS FOR RECOVERY OF DEM AND TILL THE ORDER IS PASSED. THUS, THE STAY PETITIONS FILED BY THE ASSES SEE STAND DISMISSED IN TERMS INDICATED ABOVE. 10. TO SUM UP, ALL THE ASSESSEES APPEAL ARE ALLOWED FO R STATISTICAL PURPOSES AND THE STAY PETITIONS ARE DISMISSED IN T ERMS INDICTED AS ABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13 TH NOVEMBER, 2009. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH NOVEMBER, 2009. CPU* 1317D