Vivekanand Shiksha Samiti, Haryana V. DCIT, Haryana

ITA 5462/DEL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2730 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NARESH KUMAR AGGARWAL
• Keywords: Benefit of exemption

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5462/DEL/2015 ASSESSMENT YEAR : 2011-12 VIVEKANAND SHIKSHA SAMITI, VOP DAHINA, DISTRICT REWARI, HARYANA. PAN: AAAAV3136B VS. DCIT, CIRCLE-REWARI, HARYANA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NARESH KUMAR AGGARWAL, ADVOCATE DEPARTMENT BY : SHRI RAJIV KUMAR, SR. DR DATE OF HEARING : 04.07.2017 DATE OF PRONOUNCEMENT : 05.07.2017 ORDER PER R.S. SYAL, VP: THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER PASSED BY THE CIT(A) ON 25.06.2015 IN RELATION TO THE ASSESSMENT YEAR 2011-12. ITA NO.5462/DEL/2015 2 2. REVISED GROUNDS HAVE BEEN FILED. BASICALLY THER E ARE TWO ISSUES. THE FIRST ISSUE IS AGAINST NON-ADJUDICATION BY THE LD. CIT(A) OF GROUND NO.5 TAKEN IN FORM NO.35 READING AS UNDER:- 5. THAT THE APPELLANT HAS CLAIMED INCOME EXEMPT U/ S 10(23)(IIIAD) OF THE INCOME TAX ACT, 1961. THAT FOR THE PURPOSES OF THIS SECTION EACH AND EVERY INSTITUTION RUNNING UNDER A SOCIETY IS TA KEN INDEPENDENT OF EACH OTHER AND EVEN OF THE SOCIETY. 3. THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSESS EE FILED RETURN DECLARING NIL INCOME. THE ASSESSING OFFICER OBSERV ED THAT THE ASSESSEE SOCIETY WAS RUNNING THREE INSTITUTIONS, NAMELY, VIV EKANAND SENIOR SECONDARY SCHOOL, VIVEKANAND COLLEGE OF EDUCATION, AND VIVEKANAND COLLEGE OF DIPLOMA IN EDUCATION, SITUATED AT VPO DA HINA, DISTRICT REWARI. THE ASSESSING OFFICER CONSIDERED COMBINED GROSS RECEIPTS OF THE THREE INSTITUTIONS AT RS.1.25 CRORE, WHICH, IN HIS OPINION, EXCEEDED THE THRESHOLD LIMIT OF RS.1 CRORE PROVIDED FOR AVAILING EXEMPTION U/S 10(23C)(IIIAD). THEREAFTER, ASSESSMENT WAS COMPLETE D AT TOTAL INCOME OF RS.37.20 LAC. THE ASSESSEE ASSAILED THE DECISION O F THE ASSESSING OFFICER IN NOT GRANTING THE BENEFIT OF EXEMPTION U/S 10(23C )(IIIAD) BEFORE THE LD. CIT(A) THROUGH GROUND NO.5, WHICH HAS BEEN REPRODU CED ABOVE. THE LD. ITA NO.5462/DEL/2015 3 CIT(A) DID NOT GIVE ANY FINDING ON THIS GROUND, WHI CH HAS BEEN ADMITTED BY THE LD. DR AS WELL. WITHOUT GOING INTO THE MERI TS OF THE ELIGIBILITY OR OTHERWISE OF EXEMPTION UNDER THIS SECTION, WE SET A SIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE LD. FIRST APPELLA TE AUTHORITY FOR DECIDING GROUND NO.5 TAKEN BEFORE HIM ON MERITS. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING. 4. THE ONLY OTHER ISSUE INVOLVED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION U/S 68. THE ASSESSEE RECE IVED UNSECURED LOANS TOTALING RS.36 LAC FROM EIGHT PERSONS INCLUDING THE CHAIRMAN OF THE SOCIETY, SHRI RAMA NAND. ON BEING CALLED UPON TO P ROVE THE GENUINENESS OF THE TRANSACTIONS OF RECEIPT OF LOANS, THE ASSESS EE SUBMITTED CERTAIN DETAILS. THE ASSESSING OFFICER ISSUED SUMMONS. SE VEN PERSONS OUT OF THE TOTAL EIGHT PERSONS ATTENDED THE OFFICE OF THE ASSE SSING OFFICER. STATEMENTS OF SIX PERSONS WERE RECORDED. THE ASSESSING OFFICE R HAS RECORDED IN THE ASSESSMENT ORDER THAT TWO PERSONS, NAMELY, SHRI GAN GA RAM AND SHRI SATYAVIR SINGH STATED THAT THE CHAIRMAN OF THE SOCI ETY, SHRI RAMA NAND GAVE THEM A SUM OF RS.6 LAC AND 5 LAC, RESPECTIVELY , IN CASH WHICH WAS DEPOSITED INTO THEIR RESPECTIVE BANK ACCOUNTS AND T HEN TRANSFERRED TO THE ITA NO.5462/DEL/2015 4 ACCOUNT OF THE SOCIETY. IN THIS BACKDROP OF THE FA CTS, THE ASSESSING OFFICER TREATED THE ENTIRE AMOUNT OF UNSECURED LOANS OF RS. 36 LAC AS NON-GENUINE AND MADE ADDITION FOR THE SAME. NO RELIEF WAS ALLO WED IN THE FIRST APPEAL. THE ASSESSEE IS AGGRIEVED AGAINST THE CONFIRMATION OF ADDITION. 5. HAVING HEARD BOTH THE SIDES AND PERUSED THE R ELEVANT MATERIAL ON RECORD, IT IS SEEN THAT THE ASSESSEE HAS PLACED AFF IDAVITS OF SUCH TWO PERSONS ALONG WITH EVIDENCE OF THEIR INCOME, WHO, AS PER TH E ASSESSING OFFICER, ACCEPTED THAT SHRI RAMA NAND GAVE THEM CASH WHICH WAS DEPOSITED IN THEIR BANK ACCOUNTS FOR ISSUING CHEQUES TO THE ASSE SSEE. APART FROM THAT, CERTAIN OTHER EVIDENCES HAVE ALSO BEEN PLACED ON RE CORD TO SHOW THE GENUINENESS OF THE TRANSACTIONS. IN THE GIVEN CIRCU MSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD M EET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE ON THIS SCORE AS WELL A ND THE MATTER IS REMITTED TO THE LD. CIT(A) FOR DECIDING THIS ASPECT, IF NEED ED, AFTER RENDERING HIS DECISION ON THE FIRST ISSUE OF THE AVAILABILITY OR OTHERWISE OF EXEMPTION U/S 10(23C) (IIIAD) OF THE ACT. ITA NO.5462/DEL/2015 5 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05.07.201 7. SD/- SD/- [KULDIP SINGH] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 05 TH JULY, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.