M/s H.P. Excise an Taxation Technical Service Agency, Shimla V. DCIT, Shimla

ITA 57/CHANDI/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1213 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-05-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 19-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Revenue expenditure
• Section: 12A; 12AA; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE MS.DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.57/CHD/2018 (ASSESSMENT YEAR : 2012-13) M/S H.P. EXCISE & TAXATION VS. THE D.C.I.T., TECHNICAL SERVICE AGENCY, CIRCLE SHIMLA, BLOCK NO.30, SDA COMPLEX, INCOME TAX OFFICE, KASUMPTI, RAILWAY BOARD BUILDING, SHIMLA. THE MALL, SHIMLA. PAN: AAATH 7485 A & ITA NO.99/CHD/2018 (ASSESSMENT YEAR : 2012-13) THE A.C.I.T., VS. M/S H.P. EXCISE & TAXATION CIRCLE SHIMLA, TECHNICAL SERVICE AGENCY, INCOME TAX OFFICE, BLOCK NO.30, SDA COMPLEX, RAILWAY BOARD BUILDING, KASUMPTI, THE MALL, SHIMLA. SHIMLA. PAN: AAATH 7485 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VISHAL MOHAN, ADV. DEPARTMENT BY : SMT.CHANDERKANTA, SR.DR DATE OF HEARING : 06.09.2018 DATE OF PRONOUNCEMENT : 07.09.2018 ORDER PER BENCH : THE IMPUGNED CROSS APPEALS BY THE ASSESSEE AND THE REVENUE HAVE BEEN FILED AGAINST THE ORDER PASSED B Y THE LD. COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA DA TED 20.11.2017 RELATING TO ASSESSMENT YEAR 2012-13. 2. BRIEFLY STATED, THE FACTS RELATING TO THE CASE A RE THAT THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETY REGISTRATION ACT, 1860 WITH THE OBJECT OF PROVIDING INFRASTRUCTURE FACILITY TO EXCISE AND TAXATION DEPA RTMENT OF ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 2 THE STATE GOVERNMENT, BY FACILITATING THE GENERAL P UBLIC DEALERS, CARRYING GOODS AND CROSSING THE BARRIERS E STABLISHED BY THE STATE GOVERNMENT, TO MAKE THE NECESSARY DECL ARATION REQUIRED UNDER HIMACHAL PRADESH VAT ACT,2005 FOR MOVEMENT OF GOODS ACROSS THE BARRIERS. THE ASSESSEE SOCIETY WAS MANNING ALL MULTIPURPOSE BARRIERS IN THE STATE OF HIMACHAL PRADESH AND ISSUING DECLARATION FORMS TO P ERSONS CARRYING GOODS ACROSS THE BARRIER FOR DECLARING THE SAME IN FORM ST-XXVI-A, CHARGING A USER FEE OF RS.10/- PER FORM ISSUED. OUT OF THE SAME 20% OF THE AMOUNT COLLECTED OR RS.2/- PER DECLARATION WAS DEPOSITED WITH THE STATE TREASURY AS PER CLAUSE 8.2 OF THE BYELAWS OF THE ASSESSEE SO CIETY. 3. THE ASSESSEE SOCIETY HAD BEEN REFUSED REGISTRAT ION AS A CHARITABLE SOCIETY UNDER SECTION 12AA OF THE INCO ME TAX ACT, 1961 (IN SHORT THE ACT) BY CIT, SHIMLA, HOLD ING THAT THE ACTIVITIES CARRIED ON BY IT WERE NOT FOR THE BE NEFIT OF GENERAL PUBLIC UTILITY, BUT WAS FOR PROVIDING INFRA STRUCTURE FACILITIES TO THE STATE GOVERNMENT (EXCISE AND TAXA TION DEPARTMENT). THE ASSEESSEE WAS PREPARING ITS INCOME AND EXPENDITURE ACCOUNT BUT WAS NOT SHOWING THE SURPLUS OF INCOME OVER EXPENDITURE EARNED BY IT IN ITS RETURN OF INCOME. THEREFORE NOTICE U/S 148 READ WITH SECTION 147 OF A CT WAS ISSUED TO THE ASSESSEE FOR TAXING THE SAID SURPLUS. THE ASSESSING OFFICER FOUND THAT THE SAID SURPLUS AMOUN TED TO RS.2,54,59,586/- WHICH THE ASSESSEE HAD SHOWN AS PA YABLE TO THE GOVERNMENT AS PER CLAUSE 10(2) OF ITS BYELAW S, THUS SHOWING NO SURPLUS. HE THEREFORE SUBJECTED THE SAM E TO TAX. ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 3 FURTHER, THE ASSESSING OFFICER NOTED THAT THE ASSES SEE HAD DEPOSITED AN AMOUNT OF RS.1,04,14,079/- WITH THE ST ATE TREASURY WHICH HAD BEEN DEBITED IN THE INCOME AND EXPENDITURE STATEMENT AS AN EXPENSE. THE ASSESSING OFFICER DISALLOWED THE SAME HOLDING THAT IT WAS NOT RELATED TO THE BUSINESS ACTIVITY OF THE ASSESSEE BUT IT WAS DIVERSION/DISTRIBUTION OF INCOME OF SOCIETY. ACCORD INGLY, A SUM OF RS.2,54,59,858/- AND RS.1,04,14,079/- WAS BR OUGHT TO TAX. 4. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) CHALLENGIN G THE ISSUANCE OF NOTICE U/S 148 AND ALSO THE ADDITION MA DE ON MERITS. THE LD.CIT(A) UPHELD THE ACTION OF ASSESSIN G OFFICER SO FAR AS THE ACTION OF REOPENING U/S 148 WAS CHALL ENGED, RELYING UPON THE JUDGMENT OF APEX COURT IN THE CASE OF ITO VS. LAKHMANI MEWAL DASS (1976) 3 SCC 757, AND THE DECISION OF JURISDICTIONAL HIGH COURTS IN THE CASE OF ANKITA DEPOSITS AND ADVANCES PVT. LTD. VS. COMMISSIONER OF INCOME TAX (2010) 193 TAXMAN .THE LD.CIT(A) HELD, WHILE RE JECTING THE AFORESAID GROUND OF THE ASSESSEE, THAT THE ASSE SSING OFFICER HAD DULY RECORDED REASONS AFTER APPLICATION OF MIND AND COMPLIED WITH ALL THE PROVISIONS OF THE ACT AND SINCE THE ASSESSEE HAD SHOWN THE SURPLUS OF INCOME OVER EXPEN DITURE AND HAD NOT BEEN GRANTED REGISTRATION U/S 12A OF TH E ACT, THE ASSESSING OFFICER HAD SUFFICIENT REASONS TO BEL IEVE THAT THE INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT. FURTHER, ON THE MERITS OF THE CASE, THE LD. CIT(APP EALS) HELD ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 4 THAT THE ADDITION MADE ON ACCOUNT OF FEES COLLECTED WHICH HAD BEEN PAID UPFRONT TO THE STATE GOVERNMENT AT TH E RATE OF 20% OR RS.2/- PER FORM ISSUED, COULD NOT BE TREATED AS INCOME OF ASSESSEE SINCE THIS AMOUNT HAD BEEN PAID TO STATE TREASURY, AS FOR THE BALANCE 80% AMOUNT OF FEES COL LECTED I.E. RS.8/- PER FORM, IT WAS HELD THAT IT PARTOOK T HE CHARACTER OF INCOME WHICH THE ASSESSEE HAD FREEDOM TO APPLY FOR OBJECTIVES OF THE SOCIETY. THE LD.CIT(APPEALS) HELD THAT THE SAME WAS IN THE NATURE OF THE INCOME OF THE AS SESSEE SOCIETY AND UPHELD THE ADDITION MADE ON ACCOUNT OF THE SAME ,AMOUNTING TO RS. 2,54,59,858/-. 5. AGGRIEVED BY THE SAME BOTH THE ASSESSEE AND THE REVENUE HAVE COME UP IN APPEAL BEFORE US. THE GROUN DS RAISED BY THE ASSESSEE IN ITS APPEAL IN ITA NO.57/ CHD/2018 READ AS UNDER: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE REOPENING OF THE CASE U/S 148 OF THE INCOME TAX ACT, 1961. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.89,98,634/- MADE TO THE TAXABLE INCOME OF THE ASSESSEE TREATING THE ALLEGED INCOME OVER EXPENDITURE PAYABLE TO THE GOVERNMENT TO BE THE TAXABLE INCOME OF THE ASSESSEE APPELLANT. FACT OF THE MATTER IS THAT THE SURPLUS IF ANY BELONGS TO THE GOVERNMENT AND AS SUCH IS NOT THE INCOME OF THE ASSESSEE APPELLANT. 2. THAT THE ORDER OF THE LD COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AND FACTS 6. WHILE THE GROUNDS RAISED BY THE REVENUE IN ITS A PPEAL IN ITA NO. 99/ CHD/2018 READ AS UNDER: ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 5 1. ON THE FACTS AND CIRCUMSTANCES THE LD.CIT(A) HAS ERRED IN NOT JUSTIFIED IN DELETING THE ADDITION OF RS.1,04,14,079/- MADE BY THE ASSESSING OFFICER WHICH WAS PAID TO THE GOVERNMENT AS PER THE BYELAWS OF THE ASSESSEE SOCIETY AND HOLDING THEM NON TAXABLE, INSPITE OF THE FACT THAT THE ASSESSEE HAD DEBITED SUCH PAYMENT TO ITS PROFIT AND LOSS ACCOUNT AND HAD CLAIMED IT AS A REVENUE EXPENDITURE THOUGH THE ASSESSEE IS NOT REGISTERED U/S 12AA OF THE ACT AND NOR ITS INCOME IS EXEMPT UNDER ANY OF THE PROVISIONS OF THE ACT. 2. IT IS PRAYED THAT THE ORDER OF THE LD.CIT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD ANY OTHER GROUND OF APPEAL WHICH MAY ARISE AT THE TIME OF HEARING. 7. AT THE OUTSET IT WAS POINTED OUT TO US THAT IDEN TICAL ISSUE HAD ARISEN IN THE CASE OF THE ASSESSEE IN THE PRECEDING ASSESSMENT YEAR I.E. ASSESSMENT YEARS 2007-08 TO 20 11-12 AND ALSO IN SUBSEQUENT ASSESSMENT YEAR I.E. ASSESSM ENT YEAR 2013-14, WHEREIN THE MATTER HAD TRAVELLED UPTO THE ITAT ON IDENTICAL GROUNDS RAISED BY BOTH THE PARTIE S, WHICH HAD BEEN DECIDED VIDE ORDER DATED 30-11-2017 IN ITA NO. 436 TO 441 AND 517 TO 522/CHD/2017. COPY OF THE ORD ER WAS PLACED BEFORE US. 8. DRAWING OUR ATTENTION TO THE SAME IT WAS POINTED OUT THAT IN THE AFORESAID YEARS, REOPENING HAS BEEN RES ORTED TO U/S 147 FOR THE SAME REASONS THAT THE ASSESSEE HAD SURPLUS OF INCOME OVER EXPENDITURE AND HAVING NOT BEEN GRAN TED REGISTRATION U/S 12A OF THE ACT, THE SAID SURPLUS W AS LIABLE TO TAX, WHICH HAVING NOT BEEN RETURNED TO TAX BY TH E ASSESSEE HAD ESCAPED ASSESSMENT. FURTHER, IT WAS PO INTED OUT FROM THE FACTS OF THE CASE THAT IN THE SAID YEA RS ALSO THE ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 6 ASSESSING OFFICER HAD TAXED THE AMOUNT OF FEES COLL ECTED BY THE ASSESSEE SOCIETY WHICH WAS DEPOSITED UPFRONT WI TH THE STATE GOVERNMENT IN ACCORDANCE WITH THE RELEVANT CL AUSE OF ITS MEMORANDUM AND OBJECTS AND ALSO BROUGHT TO TAX THE REMAINING AMOUNT OF FEES COLLECTED, BEING THE SURPL US OF INCOME OVER EXPENDITURE, REJECTING THE CONTENTION O F THE ASSESSEE THAT THE SAME WAS LIABLE TO BE TRANSFERRED TO STATE GOVERNMENT ONLY AND THEREFORE WAS NOT IN THE CHARAC TER OF ITS INCOME. IT WAS FURTHER POINTED THAT IN THE APPE AL FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), TH E ADDITION MADE ON ACCOUNT OF THE PORTION OF THE FEES PAID TO THE STATE TREASURY WAS DELETED WHILE THE REMAINING ADDITION OF THE SURPLUS OF INCOME OVER EXPENDITURE AND ALSO THE REOPENING OF THE CASE U/S 147 WAS UPHELD. LD. COUNS EL FOR THE ASSESSEE POINTED OUT FROM THE ORDER THEREAFTER THAT THE I.T.A.T. IN ITS ORDER HAD UPHELD THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) THAT THE REOPE NING WAS VALID. OUR ATTENTION WAS DRAWN TO PARA 14 OF TH E ORDER OF I.T.A.T. HOLDING SO AS UNDER: 14. WE HAVE PERUSED THE MATTER AND FOUND OUT THAT THE ASSESSING OFFICER HAS RIGHTLY ISSUED NOTICE UNDER SECTIO N 148 OWING TO REJECTION OF REGISTRATION UNDER SECTION 12AA AND BY RECORDING AN APPROPRIATE REASON. THE REASONS WERE ALSO DULY SUPP LIED TO THE ASSESSEE AS PER THE ASSESSEES REQUEST. SINCE THE A CTION OF THE ASSESSING OFFICER IN CONSONANCE WITH THE ACT AND PR OCEDURES WE DECLINE TO INTERFERE WITH THE ORDER OF THE LD. CIT( A) CONFIRMING THE ACTION OF ISSUING THE NOTICE UNDER SECTION 148. 9. LD. COUNSEL FOR THE ASSESSEE THEREFORE CONTENDED THAT THE ISSUE RAISED IN THE PRESENT APPEAL CHALLENGING THE REOPENING U/S 147 IS IDENTICAL TO THAT DECIDED BY THE ITAT IN THE PRECEDING/SUCCEEDING YEARS AND THE DECISION RENDERED ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 7 THEREIN SQUARELY APPLIED TO THE PRESENT CASE ALSO. LD.COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT THE GROUND RA ISED BY THE ASSESSEE CHALLENGING THE REOPENING WAS COVERED AGAINST THE ASSESSEE. 10. AS FOR THE ADDITIONS MADE IT WAS POINTED OUT TH AT THE ITAT AFTER GOING THROUGH THE OBJECTS OF THE SOCIETY AS ENUMERATED IN ITS MEMORANDUM OF ASSOCIATION, THE RU LES AND REGULATIONS OF THE SOCIETY WHICH GOVERNED ITS FUNCT IONING AND AFTER CONSIDERING THE RELEVANT PROVISIONS OF HIMACH AL PRADESH VAT ACT, 2005 PERTAINING TO THE BARRIERS AN D INSPECTION OF GOODS IN TRANSIT TO FACILITATE WHICH THE ASSESSEE SOCIETY WAS FORMED , FOUND THAT THE FOLLOWING FACTS EMERGED, AT PARA 28 OF ITS ORDER AS UNDER: 28.ON A COMPREHENSIVE EXAMINATION OF THE PURPOSE O F REGISTERING THE SOCIETY IN THE NAME OF H.P .EXCISE AND TAXATION TEC HNICAL SERVICE AGENCY ,THE ORGANIZATIONAL STRUCTURE AND CONDUCTING OF ITS FUNCTIONS,RULES & REGULATIONS OF THE SOCIETY,RECEIPTS & PAYMENT ACCOU NT OF THE SOCIETY,DETAILS OF THE COLLECTIONS ON ACCOUNT OF TA X AND AMOUNTS PAID TO GOVERNMENT,RELEVANT PROVISIONS OF H.P.VAT ACT 2005, ESTABLISHMENT OF CHECK POSTS OF BARRIER AND INSPECTION OF GOODS IN T RANSIT,THE FOLLOWING POINTS EMERGED AS UNDER: 1. THE CHECKPOST OR BARRIERS AND INSPECTION OF GOOD S IN TRANSIT WERE ESTABLISHED AS PER THE HP VAT ACT 2005. 2. THE ASSESSEE SOCIETY WAS FLOATED TO LOOK AFTER T HE AFFAIRS AND TAX COLLECTION AT THE CHECK POST AND BARRIERS. 3. THE GOVERNING BODY OF THE ASSESSEE SOCIETY CONS ISTS OF CHAIRMAN AND SIX MEMBERS ALONG WITH A MEMBER SECRETARY WHO ARE A LL FROM THE EXCISE AND TAXATION DEPARTMENT EXCEPT A TECHNICAL DIRECTOR FROM NIC AND MD OF ELECTRONIC DEVELOPMENT CORPORATION WHO MAINLY AID I N PROVIDING REQUIRED INFORMATION TECHNOLOGY INPUTS. 4. THE EXECUTIVE COMMITTEE OF THE ASSESSEE SOCIETY COMPRISE OF 8 MEMBERS ALONG WITH ONE MEMBER SECRETARY WHO ARE ALL OFFICIA LS OF EXCISE AND TAXATION DEPARTMENT. 5. THE ASSESSEE SOCIETY IS INVOLVED IN COLLECTION A ND DEPOSIT OF RECEIPTS FROM STXXVI-A FORMS. 6. OUT OF THE COLLECTED AMOUNT 20% IS PAID IMMEDIAT ELY TO THE GOVERNMENT. 7. THE REMAINING AMOUNT IS KEPT IN THE SHORT TERM D EPOSITS. ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 8 8. THE SURPLUS AMOUNT SHALL BE DEPOSITED IN THE REC EIPT HEAD 0040-SALES TAX ACCOUNT ON YEARLY BASIS. 9. THE ACCOUNTS ARE AUDITED BY THE IFU OF THE SALES TAX DEPARTMENT WHICH WILL COMPILE THE FINAL ACCOUNT THE ADDITIONAL EXCISE AND TAXATION COMMISSIONER(HEAD QUARTER) IS THE AUTHORIZED SIGNAT ORY. 11. THEREAFTER LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT IN THE ABOVE FACTUAL BACKGROUND THE ITAT EXAM INED THE FINANCIAL BACKGROUND OF THE ASSESSEE SOCIETY NOTING THAT 20% OF THE COLLECTIONS HAD BEEN DIRECTLY DEPOSITED IN G OVERNMENT TREASURY HAVING BEEN PAID UPFRONT. THE ITAT FURTHER NOTED THAT THE DETAILS OF PAYMENT OF REMAINING 80% OF THE BALANCE AMOUNT AFTER INCURRING EXPENDITURE, IN GOVERNMENT A CCOUNT WAS ALSO SUBMITTED. ON CONSIDERING THE SAME, LD. CO UNSEL FOR THE ASSESSEE POINTED OUT, THE ITAT HELD THAT TH E SURPLUS OF INCOME OVER EXPENDITURE ALSO BELONGED TO THE GOV ERNMENT WHICH HAD BEEN DULY DEPOSITED IN THE STATE EXCHEQUE R AND COULD NOT BE THE INCOME OF THE ASSESSEE. DRAWING OU R ATTENTION TO PARA 34 OF THE ORDER IT WAS POINTED OU T THAT THE ITAT HAD DIRECTED THE ASSESSING OFFICER TO VERIFY T HE AMOUNT PAID TO THE STATE GOVERNMENT OUT OF THE SURPLUS AND GIVE DUE BENEFIT ACCORDINGLY. OUR ATTENTION WAS DRAWN TO PARA 30 TO 34 OF THE ORDER AS UNDER: 30. DURING THE HEARING BEFORE US THE ASSESSEE HAS SUBMITTED THE DETAILS OF PAYMENT OF 20% OF COLLECTIONS WHICH HAVE BEEN DIRECTLY DEPOSITED INTO THE GOVERNMENT TREASURY. THE LD. CIT (A) HAS ALSO ACCEPTED THE CONTENTION OF THE ASSESSEE THAT 20% OF THE FEES COLLECTED WAS PAID UPFRONT TO THE GOVERNMENT IS NOT AN INCOME . 31. THE ASSESSEE HAS ALSO SUBMITTED THE DETAILS OF PAYMENT OF REMAINING 80% OF THE BALANCE AMOUNT AFTER INCURRING A EXPENDITURE WHICH HAVE BEEN DULY DEPOSITED IN TO THE GOVERNMENT ACCOUNT. THUS, TAKING THE BALANCE 80% AMOUNT EXCLUDING THE EXPENDITURE OUT OF THE AMBIT OF TAXATION. THE FOLLOWING TABLE GIVES THE DETAILS OF AMOUNTS PAID INTO THE GOVERNMENT ACCOUNT. ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 9 32. THUS, AFTER GOING THROUGH THE ENTIRE AFFAIRS OF THE ASSESSEE WE HOLD THAT THE SURPLUS OF INCOME OVER EXPENDITURE A LSO BELONGS TO THE GOVERNMENT WHICH HAS BEEN DULY DEPOSITED IN THE STATE EXCHEQUER CANNOT BE THE INCOME OF THE ASSESSEE. 33. BEFORE US THE ASSESSEE HAS SUBMITTED STATEMENT REFLECTING THE PAYMENT OF BALANCE AMOUNT OF THE 80% OF THE FEE COLLECTED HAS ALSO BEEN PAID TO THE TREASURY OF THE STATE GOVERNMENT. 34. THE ASSESSING OFFICER IS HEREBY DIRECTED TO EXA MINE THE CHALLANS PAID BY THE ASSESSEE INTO THE GOVERNMENT AC COUNT UNDER THE RECEIPT HEAD 0040 SALES TAX ACCOUNT AS SUBMITTED BY THE ASSESSEE AND GIVE DUE BENEFIT FOR THE AMOUNTS PAID INTO THE GOVERNMENT EXCHEQUER. 12. LD. COUNSEL FOR THE ASSESSEE THEREFORE SUBMITTE D THAT IN THE PRECEDING/SUCCEEDING YEARS, THE ITAT HAD HEL D THAT THE ENTIRE AMOUNT OF 20% OF THE FEES COLLECTED AND PAID TO THE STATE GOVERNMENT UPFRONT WAS ELIGIBLE FOR DEDUC TION. AND THAT OUT OF THE BALANCE 80% OF THE FEES COLLECT ED, THE SURPLUS REMAINING AFTER CLAIMING EXPENDITURE, WAS E LIGIBLE FOR DEDUCTION PROVIDED AND SUBJECT TO VERIFICATION THAT IT WAS PAID INTO THE GOVERNMENT ACCOUNT. LD. COUNSEL F OR THE ASSESSEE CONTENDED THAT ISSUE IN PRESENT APPEAL WAS IDENTICAL TO THAT IN THE PRECEDING/SUCCEEDING YEARS DECIDED BY THE ITAT, AS ABOVE, AND THE DECISIONS OF ITAT S QUARELY APPLIED IN THE PRESENT CASE ALSO. HE THEREFORE CONT ENDED THAT 20% OF THE FEES COLLECTED AND PAID UPFRONT TO THE G OVERNMENT AMOUNTING TO RS.1,04,14,079/- BE ALLOWED, WHILE THE SURPLUS REMAINING OUT OF THE BALANCE 80% FEES COLLECTED, AM OUNTING TO RS.2,54,59,586/-, BE ALLOWED AFTER VERIFYING PA YMENT OF ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 10 THE SAME TO THE GOVERNMENT, FOR WHICH PURPOSE THE I SSUE BE RESTORED BACK TO THE AO. HE FURTHER STATED THAT THE NECESSARY DETAILS AND EVIDENCES IN THIS REGARD WOUL D BE FURNISHED BY THE ASSESSEE TO THE AO. 13. LD. D.R. FAIRLY CONCEDED THAT THE ISSUE WAS SQU ARELY COVERED BY THE ORDER OF ITAT IN THE PRECEDING/SUCCE EDING YEARS. 14. IN VIEW OF THE ABOVE AND AFTER GOING THROUGH T HE ORDER OF ITAT IN PRECEDING/SUCCEEDING YEARS, WE AGREE THA T ALL THE ISSUES RAISED IN THE CROSS APPEALS FILED BEFORE US ARE SQUARELY COVERED BY THE ORDER OF THE ITAT OF THE PRECEDING/SUCCEEDING YEARS, VIDE THEIR ORDER PASSED DATED 30-11-2017. FOLLOWING THE SAME WE UPHOLD THE REOPEN ING OF THE CASE U/S 147 READ WITH SECTION 148 OF THE ACT. ACCORDINGLY, GROUND NO 1 RAISED BY THE ASSESSEE CHA LLENGING THE REOPENING OF CASE U/S 147 IS DISMISSED. FURTHER THE ISSUE RAISED IN GROUND NO 2 REGARDING THE ADDITION MADE OF THE SURPLUS OF INCOME OVER EXPENDITURE, IS BEING RE STORED TO THE ASSESSING OFFICER TO BE ADJUDICATED IN ACCORDAN CE WITH THE DIRECTIONS OF THE ITAT IN ITS ORDER PASSED IN I TA NO. 436 TO 441 AND 517 TO 522/CHD/2017 DATED 30-11-2017. GROUND NO.2 RAISED BY THE ASSESSEE IS THEREFORE ALL OWED FOR STATISTICAL PURPOSES. 15. THE APPEAL OF THE ASSESSEE IS THUS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ITA NO.57/CHD/2018 & ITA NO.99/CHD/20 18 A.Y.2012-13 11 16. AS FOR THE APPEAL FILED BY THE REVENUE CHALLENG ING THE DELETION OF ADDITION MADE OF DEDUCTION CLAIMED OF T HE AMOUNT DEPOSITED WITH STATE TREASURY UPFRONT AMOUNT ING TO RS.1,04,14,079/- THE SAME IS DISMISSED FOLLOWING TH E ORDER OF ITAT IN THE CASE OF THE ASSESSEE IN ITA NOS. 436 TO 441 AND 517 TO 522/CHD/2017 DATED 30-11-2017 . 17. IN VIEW OF THE ABOVE, THE APPEAL OF REVENUE IS DISMISSED. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 7 TH SEPTEMBER, 2018 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH