DDIT (E)-II(1), MUMBAI V. INDIAN INSTITURE OF BANKING & FINANCE, MUMBAI

ITA 5769/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8532 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 11-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 16-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority
• Section: 143(3); 11

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . .. . . .. . , ,, , ! ! ! ! , ' ' ' ' # $% # $% # $% # $% , ,, , & ! & ! & ! & ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 5769/MUM./2010 ( &( ) '*) / ASSESSMENT YEAR : 200405 ) DY. DIRECTOR OF INCOME TAXII(1) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI 400 012 .. +, / APPELLANT ( V/S M/S. INDIAN INSTITUTE OF BANKING & FINANCE, WORLD TRADE CENTRE THE ARCADE, CUFFE PARADE MUMBAI 400 005 .... -.+, / RESPONDENT !+ . / PERMANENT ACCOUNT NUMBER AAATT3309D !' 0 1 / REVENUE BY : MR. K.G. KUTTY &( )2 0 1 / ASSESSEE BY : MR. NITESH JOSHI (' 0 / DATE OF HEARING 11.10.2012 $ 34* 0 / DATE OF ORDER 19.10.2012 $ $ $ $ / ORDER # $% # $% # $% # $% , ,, , & ! & ! & ! & ! 5 5 5 5 / PER AMIT SHUKLA, J.M. THE PRESENT APPEAL PREFERRED BY THE REVENUE, IS DIR ECTED AGAINST THE IMPUGNED ORDER DATED 30 TH MARCH 2010, PASSED BY THE LEARNED M/S. INDIAN INSTITUTE OF BANKING & FINANCE 2 COMMISSIONER (APPEALS)I, MUMBAI, FOR THE QUANTUM O F ASSESSMENT PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ), FOR ASSESSMENT YEAR 200405, WHEREIN FOLLOWING G ROUNDS HAVE BEEN RAISED: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , AND IN LAW, THE LD. CIT(A), MUMBAI HAS ERRED IN HO LDING THAT THE LIFE MEMBERSHIP FEES AMOUNTING TO RS.76,87,000/- IS NOT TAXABLE IGNORING THE FACT THAT THE INCOME OF THE ASSESSEE IS TO BE COMPUTED AS PER SEC.1 1 TO 13 OF THE L.T. ACT, 1961 IN NORMAL COMMERCIAL SE NSE WITHOUT DISTINCTION BETWEEN CAPITAL AND REVENUE RECEIP T. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , AND IN LAW, THE LD. CIT(A), MUMBAI ERRED IN HOLDING THAT THE LIFE MEMBERSHIP FEES AMOUNTING TO RS.76,87,000/- WER E NOT TAXABLE IGNORING THE FACT THAT AS PER THE PROVISION S OF SECTION 11(1)(D) ONLY VOLUNTARY CONTRIBUTIONS MADE WITH SPECIFIC DIRECTION THAT THEY SHALL FOR PART OF THE CORP US OF THE T RUST OR INSTITUTION ARE NOT TO BE INCLUDED IN THE TOTAL INCOME AND LIFE MEMBERSHIP FEES ARE NOT VOLUNTARY CONTRIBUTIONS BUT ARE COMPULSORY FEES TO BE PAID TO TH E CLUB FOR ITS MEMBERSHIP. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT IN THE CROSS APPEALS FILED BY THE ASSESSEE IN ITA NO.5811/MUM./2010, ORDER DATED 16 TH MAY 2012 , FOR THE SAME ASSESSMENT YEAR, WHICH WAS HEARD ALONG WITH THE ASS ESSEES OTHER APPEALS, THE ENTIRE MATTER HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, AFTER THE COMPETENT AUTHORITY DISPOSES OFF THE PENDING APPLICATION OF THE ASSESSEE FOR EXEMPTI ON UNDER SECTION 10(23C) OF THE ACT, FOR THE PARTICULAR ASSESSMENT Y EAR. IN THE LIGHT OF THE SAID FINDINGS, BOTH THE PARTIES AGREED THAT THIS AP PEAL SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AS THE EXEMPTION UNDER SECTION 10(23C) GOES TO THE ROOT OF THE ISSUE AND O NCE THE EXEMPTION IS M/S. INDIAN INSTITUTE OF BANKING & FINANCE 3 GRANTED UNDER SECTION 10(23C), THEN THE ISSUE RAISE D IN THE REVENUES APPEAL WILL BECOME PURELY ACADEMIC. 3. AFTER CAREFULLY CONSIDERING THE SUBMISSIONS MADE BY THE PARTIES, WE FIND THAT THE TRIBUNAL, IN ASSESSEES OWN CASE, HAV E OBSERVED AND HELD AS UNDER:- 6. FROM THE ABOVE IT IS CLEAR THAT THE SPECIFIC ORD ER OF THE TRIBUNAL HAS NOT BEEN COMPLIED WITH THOUGH THE CCIT PASSED A N ORDER FOR A.Y, 2008-09, REFUSING GRANT OF EXEMPTION U/S. 10(2 3C)(VI). FOR THE YEAR IN QUESTION APPLICATION OF THE ASSESSEE, IS NO T YET DISPOSED OF. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, AFTER CBDT/CCIT DISPOSES OF THE PENDING APPLICATION OF THE ASSESSEE , SEEKING EXEMPTION U/S. L0(23C) OF THE I.T. ACT FOR THIS PAR TICULAR ASSESSMENT YEAR, THE ASSESSING OFFICER SHALL PURSUE THE MATTER WITH THE CBDT. THUS, THIS APPEAL IS SET ASIDE FOR S TATISTICAL PURPOSES. 7. COMING TO ITA NO. 5810 TO 58 14/MUM/2010 FOR A.Y . 2003-04 TO 2007-08, THE APPLICATIONS FILED BY THE ASSESSEE FOR EXEMPTION U/S. L0(23C)(VI) OF THE ACT ARE PENDING EITHER BEFORE TH E CBDT OR BEFORE THE CHIEF COMMISSIONER OF INCOME TAX. CONSISTENT WI TH THE VIEW TAKEN BY US FOR A.Y. 2001-02, WE SET ASIDE THE ISSU E TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER DISP OSAL OF THE APPLICATIONS OF THE ASSESSEE FOR EXEMPTION U/S. 10( 23)(VI) BY THE CONCERNED AUTHORITIES. 8. AS WE HAVE SET ASIDE THE MATTER THE ISSUE OF ASS ESSEES CLAIM FOR EXEMPTION U/S. 11 IS LEFT OPEN. 4. IN VIEW OF THE AFORESAID FINDINGS OF THE TRIBUNAL, WE ARE OF THE OPINION THAT THE PRESENT APPEAL OF THE DEPARTMENT A LSO NEEDS TO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH ONCE THE EXEMPTION UNDER SECTION 10(23C), WHICH IS PENDING BEFORE THE COMPETENT AUTHORITY, IS DECIDED. ACCORDINGLY, THE G ROUNDS RAISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. M/S. INDIAN INSTITUTE OF BANKING & FINANCE 4 5. 2 7 !' 0 80 9:; # !' < 0 => ? 10. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. $ 0 4* @ A (7 19 TH OCTOBER 2012 4 0 ? ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH OCTOBER 2012 SD/- . .. . . .. . ! ! ! ! P.M. JAGTAP ACCOUNTANT MEMBER SD/- # # # # $% $% $% $% & ! & ! & ! & ! AMIT SHUKLA JUDICIAL MEMBER MUMBAI, A ( A ( A ( A ( DATED: 19 TH OCTOBER 2012 $ 0 -&#B CB* / COPY OF THE ORDER FORWARDED TO : (1) &( )2 / THE ASSESSEE; (2) !' / THE REVENUE; (3) D () / THE CIT(A); (4) D / THE CIT, MUMBAI CITY CONCERNED; (5) B'G -&&( , , / THE DR, ITAT, MUMBAI; (6) H) I / GUARD FILE. .B -& / TRUE COPY $( / BY ORDER - . JK / PRADEEP J. CHOWDHURY '2L &( J' / SR. PRIVATE SECRETARY 9 / = / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI M/S. INDIAN INSTITUTE OF BANKING & FINANCE 5 DATE INITIAL ORIGINAL DICTATION PAID IS ENCLOSED AT THE END OF T HE FILE 1. DRAFT DICTATED ON 15.10.2012 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16.10.2012 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 16.10.2012 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16.10.2012 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 16.10.2012 SR.PS 6. DATE OF PRONOUNCEMENT 19.10.2012 SR.PS 7. FILE SENT TO THE BENCH CLERK 1.11.2012 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER ON LEAVE FROM 19 TH TO 31 ST OCTOBER 2012