The DCIT (Exemptions), Circle.-1., Ahmedabad V. Gujarat Council Of Vocational Training, Gandhinagar

ITA 551/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4905 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 02-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P. B
• Keywords: Charitable institution
• Section: 12; 11; 15; 143(3); 12AA; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD [CONDUCTED THROUGH VIRTUAL AT AHMEDABAD] BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER& MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 551/AHD/2019 (ASSESSMENT YEAR: 2015-16) THE ACIT(E), CIRCLE-1, AHMEDABAD VS. GUJARAT COUNCIL OF VOCATIONAL TRAINING, BLOCK NO. 1, 2 ND FLOOR, DR. JIVRAJ MEHTA BHAVAN, GANDHINAGAR - 382010 [PAN NO. AABTG3148A] ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY : SHRI R. R. MAKWANA, SR. DR, ASSESSEE BY : SHRI TUSHAR HEMANI, SR. ADV., & P. B. PARMAR, AR DATE OF HEARING 2 3 . 0 9 .20 2 1 DATE OF PRONOUNCEMENT 29 . 0 9 . 20 2 1 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 09.01.2019 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-9, AHMEDABAD ARISING OUT OF THE ORDER DATED 13.12.2017 PASSED BY THE DCIT(E), CIRCLE 1, AHMEDABAD UNDER SECTION 143(3) OF THE I NCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FOR THE ASSE SSMENT YEAR (A.Y.) 2015-16 WITH THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS TH E PROVISIONS OF SECTION 2(15) OF THE ACT AND HOLDING THAT THE ACTIVITY OF THE ASS ESSEE FALLS UNDER THE CLAUSE EDUCATION AND NOT THE LAST LIMB OF ADVANCEMENT O F GENERAL PUBLIC UTILITY. 2. THE CIT(A) HAS ERRED IN THE LAW AND ON FACTS IN ALLOWING CLAIM OF ACCUMULATION UNDER SECTION 11(2) OF RS. 4,55,80,000 /- THE ACT NOT APPRECIATING THAT THE ASSESSEES ACTIVITIES IS CLEARLY FALLING UNDER THE PROVISO (I) AND (II) OF SECTION 2(15) OF THE I.T. ACT AND NO SUCH EXEMPTIONS IS ALL OWABLE. 3. THE CIT(A) HAS ERRED IN THE LAW AND ON FACTS IN ALLOWING CLAIM OF ACCUMULATION UNDER SECTION 11(1)(A) OF RS. 1,09,08, 088/- THE ACT NOT APPRECIATING ITA NO.551/AHD/2019 ACIT(E) VS. GUJARAT COUNCIL OF VOCATIONAL TRAINING ASST.YEAR 2015-16 - 2 - THAT THE ASSESSEES ACTIVITIES IS CLEARLY FALLING U NDER THE PROVISO (I) & (II) OF SECTION 2(15) OF THE I.T. ACT AND NO SUCH EXEMPTIONS IS ALL OWABLE. 4. THE REVENUE CRAVES TO ADD, ALTER, AMEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY GROUNDS OF APPEAL ON OR BEFORE T HE FINAL HEARING, IN NECESSITY SO ARISES. 2. THE ASSESSEE IS A CHARITABLE TRUST REGISTERED UN DER SECTION 12AA OF THE ACT AND ALSO REGISTERED AS A TRUST UNDER THE BOMBAY PUBLIC TRUST ACT IS IN THE FIELD OF VOCATIONAL EDUCATION, CONDUCTING EXAMINATI ONS, CERTIFICATIONS, ASSESSMENT OF ANSWER SHEET, PROVIDING TRAINING IN V OCATIONAL COURSE, PROMOTING COURSES IN FOREIGN LANGUAGE ETC. FILED ITS RETURN O F INCOME ON 29.09.2015 WITH RETURNED INCOME OF NIL. THE ASSESSEE IN COMPUTATIO N OF INCOME CLAIMED THE FOLLOWING DEDUCTION: (I) ACCUMULATION UNDER SECTION 11(2) OF THE ACT TO THE TUNE OF RS. 4,55,80,000/- (II) ACCUMULATION UNDER SECTION 11(1)(A) OF THE ACT TO THE TUNE OF RS. 10,09,08,088/-. APPLYING THE PROVISO OF SECTION 2(15) SUCH EXEMPTI ON HAS BEEN DENIED BY THE LD. AO WHICH WAS ALLOWED IN APPEAL BEFORE TH E LD. CIT(A). 3. THE CASE OF THE REVENUE IS THIS THAT APPELLANT R ECEIVES CONSIDERATION/FEES IN RESPECT OF SUCH ACTIVITIES AN D SUCH EXCESS INCOME OVER EXPENDITURE IS IN HUGE MAGNITUDE AND, THUS, THE APP ELLANT IS HIT BY PROVISO 1 & 2 OF SECTION 2(15) OF THE ACT. FURTHER THAT IN THE LIGHT OF PROVISIONS OF SECTION 13(8) OF THE ACT THE APPELLANT LOSES ALL THE EXEMPT IONS CLAIMED UNDER SECTION 11 & 12 OF THE ACT AND, THEREFORE, THE DISALLOWANCE OF THE CLAIM OF THE APPELLANT HAS BEEN MADE. THE LD. CIT(A) RELYING UP ON THE ORDER PASSED BY HIS PREDECESSOR DATED 30.07.2014 FOR A.Y. 2011-12 ON TH E SIMILAR ISSUE GRANTED RELIEF TO THE ASSESSEE. ITA NO.551/AHD/2019 ACIT(E) VS. GUJARAT COUNCIL OF VOCATIONAL TRAINING ASST.YEAR 2015-16 - 3 - 4. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSES SEES CASE IS ALSO COVERED UNDER THE ORDER DATED 25.10.2018 PASSED BY THE COOR DINATE BENCH IN REVENUES APPEAL IN ITA NO. 3378&3379/AHD/2016 FOR A.Y. 2009-10 & 2012-13 AND ALSO COVERED BY THE ORDER DATED 26.06.2 019 PASSED BY THE COORDINATE BENCH IN THE APPEAL PREFERRED BY REVENUE IN ITA NO. 650/AHD/2018 FOR A.Y. 2014-15; COPY WHEREOF HAVE AL SO BEEN SUBMITTED BEFORE US. SUCH CONTENTION MADE BY THE LD. AR HAS NOT BEEN OBJECTED BY THE LD. DR WITH ALL HIS FAIRNESS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RES PECTIVE PARTIES AND WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVA ILABLE ON RECORD. 6. WE HAVE FURTHER CONSIDERED THE ORDER PASSED BY T HE COORDINATE BENCH. WHILE DEALING WITH THE IDENTICAL ISSUES THE COORDIN ATE BENCH HAS BEEN PLEASED TO OBSERVE AS FOLLOWS IN ITA NO. 650/AHD/2018 FOR A .Y. 2014-15: 2. THE REVENUE HAS RAISED FOLLOWING GROUND OF APPE AL:- 1. THE LD. CIT(A) HAS ERRED IN THE LAW AND ON FACT S IN ALLOWING THE ACCUMULATION OF RS.4,89,00,000/- U/S.11(2) AND ACCUMULATION OF RS. 1,28,57,204/- U/S.11(1)(A) OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE CASE OF THE ASSESSEE IS CLEARLY FALLING UNDER THE PROVISO (1) & (2) OF SECTION 2(15) OF THE ACT. 3. THE FACT IN BRIEF IS THAT ASSESSING OFFICER HAS PASSED ORDER U/S. 143(3) OF THE ACT ON 25TH NOV, 2006 DETERMINED THE TOTAL INCOME OF THE A SSESSEE AT RS. 6,17,57,204/- AS AGAINST TOTAL INCOME OF RS. NIL DECLARED BY THE ASS ESSEE. THE ASSESSEE IS A TRUST AND ITS MAIN OBJECT IS TO CARRY OUT SURVEYS REGARDING D EMAND FOR MAN POWER REQUIREMENT IN VARIOUS VOCATIONAL SKILL, TRADE AND ON THE BASIS OF THESE SURVEYS WORK OUT PROJECTION OF REQUIREMENT OF SKILLED MANPOWER IN TH E STATE. THE ASSESSEE TRUST ALSO PROMOTES DEVELOPMENT OF THE REQUIREMENT FOR TRADES CONDUCTED IN THE PRIVATE VOCATIONAL TRAINING INSTITUTE. THE ASSESSEE HAS BEE N GRANTED REGISTRATION U/S. 12AA ON 31ST JAN, 2006. DURING ASSESSMENT, THE ASSESSING OF FICER WAS OF THE VIEW THAT THE ASSESSEE ALSO CARRIED OUT ACTIVITIES OF ADVANCEMENT OF PUBLIC UTILITIES IN THE FORM OF ADVANCEMENT, VOCATIONAL SKILLS AND CHARGES FEES FOR SUCH ACTIVITIES, THEREFORE, THE SAME WAS NOT A CHARITABLE ACTIVITY BY ANY MEANS. TH EREFORE, THE ASSESSING OFFICER HAS STATED THAT ASSESSEES ACTIVITIES WERE NOT FOR A CH ARITABLE PURPOSE AND INVOKED THE ITA NO.551/AHD/2019 ACIT(E) VS. GUJARAT COUNCIL OF VOCATIONAL TRAINING ASST.YEAR 2015-16 - 4 - PROVISION OF PROVISO TO SECTION 2, SUB-SECTION 15 R .W. 13(8) OF THE ACT AND DENIED BENEFIT OF SECTION 11 AND 12 TO THE ASSESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERNAL ON RECORD. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS BROUGHT TO OUR NOTICE THAT CO-ORDINATE BENCH OF THE ITAT, AHMEDABA D IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESSMENT YEAR 2009-10 AND 2012-13 VIDE ITA NO. 3378 & 3379/AHD/2016 HAS DECIDED THE IDENTICAL ISSUE ON SIMILAR FACT IN FAVOUR OF THE ASSESSEE. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE HAVE GONE THR OUGH THE ABOVE CITED ORDER OF THE ITAT AHMEDABAD AND NOTICED THAT IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT PARTS OF THE ORDER OF ITAT V IDE ITA NO. 3378 & 3379/AHD/2016 IS REPRODUCED AS UNDER:- 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE DEDUCTION CLAIM ED BY THE ASSESSEE U/S LL(L)(A)/LL(2) OF THE ACT WAS DENIED BY THE AO ON T HE GROUND THAT THE ACTIVITY OF THE ASSESSEE INVOLVES ADVANCEMENT OF ANY OTHER A BJECT OF GENERAL PUBLIC UTILITY AND ITS RECEIPTS EXCEEDS THE MANDATORY LIMI T AS SPECIFIED UNDER PROVISO TO SECTION 2(15) OF THE ACT. FROM THE PRECEDING DISCUSSION, WE NOTE THAT THERE W AS NO APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) PERT AINING TO THE A.Y. 2011- 12 WHICH IMPLIES THAT THE ORDER OF LD. CIT(A) REACH ED TO \ ITS FINALITY. IN OUR CONSIDERED VIEW, ONCE, THE ORDER OF THE LD CIT(A) H AS REACHED TO ITS FINALITY TO ANY OF THE ASSESSMENT YEAR THEN ON THE SAME GROU ND NO APPEAL BY THE REVENUE CAN BE PREFERRED TO THE HON'BLE ITAT IN OTH ER YEARS. IN THIS REGARD, WE DRAW SUPPORT AND GUIDANCE FROM THE JUDGMENT OF H ON'BLE SUPREME COURT IN THE CASE OF CIT VS. EXCEL INDUSTRIES LIMITED REP ORTED IN 358 ITR 295 WHEREIN IT WAS HELD AS UNDER: '31. IT APPEARS FROM THE RECORD THAT IN SEVERAL ASS ESSMENT YEARS, THE REVENUE ACCEPTED THE ORDER OF THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND DID NOT PURSUE THE MATTER ANY FURTHER BUT IN RESPECT OF SOM E ASSESSMENT YEARS THE MATTER WAS TAKEN UP IN APPEAL BEFORE THE BOMBAY HIG H COURT BUT WITHOUT ANY SUCCESS. THAT BEING SO, THE REVENUE CANNOT BE A LLOWED TO FLIP-FLOP ON THE ISSUE AND IT OUGHT LET THE MATTER REST RATHER THAN SPEND THE TAX PAYERS' MONEY IN PURSUING LITIGATION FOR THE SAKE OF IT.' 9.1 WE ALSO OBSERVED THAT THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES IN THE IMPUGNED CASE IN COMPARISON TO THE PREVIOUS ASSESSMENT YEARS AND THE REVENUE IN EARLIER YEAR HAS ACCEPTED THE SAME. THER EFORE IN OUR CONSIDERED VIEW THE PRINCIPLES OF CONSISTENCY SHOULD BE APPLIE D. IN THIS REGARD WE FIND PRINCIPLES LAID DOWN IN THE JUDGMENT OF HON'BLE SUP REME COURT IN THE CASE OF RADHASOAMI SATSANG VS. COMMISSIONER OF INCOME TAX ( 1992) 193 ITR 0321 (SC) ARE DIRECTLY ATTRACTED TO THE INSTANT CASE WHE REIN IT WAS OBSERVED THAT IN ITA NO.551/AHD/2019 ACIT(E) VS. GUJARAT COUNCIL OF VOCATIONAL TRAINING ASST.YEAR 2015-16 - 5 - THE ABSENCE OF ANY MATERIAL CHANGE IN THE FACTS, TH E REVENUE SHOULD NOT TAKE A DIFFERENT VIEW IN THE OTHER YEAR. IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S LL(L)(A)/LL(2) OF THE ACT. ACCORDINGLY, WE DO NOT F IND ANY INFIRMITY IN THE ORDER OF LD. CIT(A). HENCE, THE GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. RESPECTFULLY FOLLOWING THE DECISION OF ITAT AS REF ERRED ABOVE WHEREIN THE IDENTICAL ISSUE ON SIMILAR FACTS HAS BEEN DECIDED I N FAVOUR OF THE ASSESSEE, THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVEN UE, THEREFORE, THE SAME IS DISMISSED. 7. IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES RESP ECTFULLY RELYING UPON THE SAME ON THE IDENTICAL ISSUE WE FIND THE ORDER I MPUGNED PASSED BY THE LD. CIT(A) GRANTING RELIEF IN REGARD TO THE CLAIM MADE BY THE ASSESSEE UNDER SECTION 11(2) AND SECTION 11(1)(A) OF THE ACT IS JU ST AND PROPER, WITHOUT ANY AMBIGUITY SO AS TO WARRANT INTERFERENCE. HENCE, TH E REVENUES APPEAL FOUND TO BE DEVOID OF ANY MERIT, HENCE, DISMISSED. 8. IN THE RESULT, THE APPEAL PREFERRED BY THE REVEN UE IS, THUS, DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 29/09/2021 SD/- SD/- (WASEEM AHMED) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/09/2021 TANMAY, SR. PS TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD