ITO, Ward 1(2), Pune V. M/s. Jog Education Trust, Pune

ITA 580/PUN/2013

• Counselvise Citation: 58024514 RSA 2013
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-02-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Charitable institution; Reassessment proceedings
• Section: 143(3); 12A; 147; 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NOS.579 AND 580/PN/2013 (ASSESSMENT YEARS 2009-10 AND 2010-11) ITO, WARD-11(2), PUNE .. APPELLANT VS. M/S.JOG EDUCATION TRUST, PUSHKARAJ, 1205/2/4, SHIVAJINAGAR, JANGALI MAHARAJ ROAD, PUNE 411004 .. RESPONDENT PAN NO.AAATJ4858M ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI P.L. PATHADE DATE OF HEARING : 20-02-2014 DATE OF PRONOUNCEMENT : 26-02-2014 ORDER PER R.K. PANDA, AM : THE ABOVE 2 APPEALS FILED BY THE REVENUE ARE DIREC TED AGAINST THE COMMON ORDER DATED 03-12-2012 OF THE CIT(A)-I, PUNE RELATING TO ASSESSMENT YEARS 2009-10 AND 2010-11 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE, BOTH THE APPEALS WERE HEARD TOGETHER A ND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.579/PN/2013 (A.Y. 2009-10) 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PUBIC CHARITABLE TRUST CREATED ON 05-01-1991. IT IS ENGAGED IN PROV IDING EDUCATION TO STUDENTS IN MAHARASHTRA FROM THE PRE-PRIMARY LEVEL TO JUNIOR COLLEGE. IT ALSO PROVIDES EDUCATION IN THE FIELD OF SPORTS, COM PUTER, EDUCATIONAL TRAINING ETC. SINCE THE ASSESSEE APPLIED FOR REGIS TRATION U/S.12A OF THE I.T. 2 ACT, AS LATE AS IN THE MARCH 2001, THE ASSESSING OF FICER WHILE PROCESSING THE SAID APPLICATION NOTICED THAT TRUST HAS NOT FIL ED FORM NO.10 R.W. RULE 17 OF THE I.T. RULES, 1961. THEREFORE, IN ORDER TO AS CERTAIN THE FACTUAL POSITION THE ASSESSING OFFICER ISSUED NOTICE U/S.148 ON 26-0 9-2011. IN RESPONSE TO NOTICE U/S.148, THE ASSESSEE FILED ITS RETURN OF IN COME ON 04-11-2011 DECLARING TOTAL INCOME AT NIL. SUBSEQUENTLY, THE A SSESSING OFFICER ISSUED NOTICE U/S.142(1) AND 143(2) OF THE I.T. ACT ON 04- 11-2011. THE ASSESSEE FILED THE REQUISITE DETAILS BEFORE THE ASSESSING OF FICER. 2.1 FROM THE VARIOUS DETAILS FURNISHED BY THE ASSES SEE THE ASSESSING OFFICER NOTED THAT THERE IS SURPLUS OF RS.14,02,385 DURING THE YEAR. HE OBSERVED THAT THOUGH THE ASSESSEE HAS SET APART SUR PLUS, THE TRUST HAS NOT FILED FORM NO.10 R.W. RULE 17 OF THE RULES. FURTHE R, THE TRUST HAS BEEN REGISTERED U/S.12AA OF THE ACT ONLY W.E.F., 01-04-2 010 AND THEREFORE IT IS NOT ENTITLED TO ANY EXEMPTION U/S.11 OF THE ACT. T HE ASSESSING OFFICER ACCORDINGLY TAXED THE ENTIRE SURPLUS OF RS.14,02,38 5/-. 3. BEFORE THE CIT(A) THE ASSESSEE TOOK AN ADDITIONA L GROUND ACCORDING TO WHICH THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S.148 OF THE I.T. ACT, 1961 AND THE CONSEQUENTIAL RE-ASSESSMENT ORDER ARE INVALID IN LAW AS THE ASSESSING OFFICER DID NOT FURNISH THE COPY OF THE R EASONS RECORDED BY HIM U/S.148 EVEN THOUGH THE ASSESSEE HAD SPECIFICALLY R EQUESTED FOR FURNISHING THE SAME BEFORE THE PASSING OF THE IMPUGNED ORDER. RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT SINCE THE ASSESSEE VIDE LETTER DATED 14-12- 2011 HAD REQUESTED FOR THE REASONS AND THE ASSESSIN G OFFICER SUPPLIED THE SAME ONLY AFTER PASSING OF THE ORDER, THEREFORE, TH E RE-ASSESSMENT PROCEEDINGS SHOULD BE HELD AS VOID AB-INITIO. 3 4. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) QUASHED THE RE-ASSESSMENT PROCEEDINGS BY OBSERVING AS UNDER : 5. I HAVE CONSIDERED THE SUBMISSIONS MADE WITH REFERENC E TO THE ADDITIONAL GROUND. SINCE IT RAISES A LEGAL ISSUE REGA RDING THE VALIDITY OF THE REASSESSMENT PROCEEDINGS THE SAME IS ADMITTED AND DECIDED FIRST. THE HON'BLE MP HIGH COURT IN THE CASE OF HOTEL ASHOKA AND ANR VS. UNION OF INDIA AND ANR (226 ITR 388) HELD WITH RESPECT, TO NO N-DISCLOSER OF REASON RECORDED FOR REOPENING ASSESSMENTS, AS UNDER: 'SECTION 147(A) POSTULATE TWO CONDITIONS. ONE THAT TH E OFFICER MUST, ON THE BASIS OF MATERIAL FACTS ON RECORD, PRIMA FACIE, BE SATI SFIED THAT THE INCOME, EXIGIBLE TO TAX, HAD ESCAPED ASSESSMENT AND TWO THAT ESCA PEMENT IS ATTRIBUTABLE TO THE OMISSION OR FAILURE ON THE PART O F THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL MATERIAL FACTS NECESSARY FOR PROP ER ASSESSMENT. THESE ARE CONDITIONS PRECEDENT TO THE EXERCISE OF JURI SDICTION UNDER SECTION 147 READ WITH SECTION 148 OF THE ACT. EVEN I F THE NOTICE REVEALED NO SATISFACTION, YET IT CAN BE SUSTAINED IF THE RECORD DISC LOSED IT. LAW IS SETTLED. IN ITO V. BIJU PATNAIK [1993] 188 ITR 247 (SC) AND PHOOL CHAND BAJRANG LAL V. ITO [1993] 203 ITR 456 (SC) TH E POSITION OF LAW HAS BEEN STATED IN CLASSIC TERMS. AS TO THE GROUND (A), IT NEEDS TO BE STATED THAT WHEN THE AFORESAID CONDITIONS ALONE CONFER THE JURISDICTION, THEN IT BEC OMES ALL THE MORE OBLIGATORY ON THE PART OF THE AUTHORITY CONCERNED T O DISCLOSE AND COMMUNICATE THE REASONS FOR APPRECIATION AND PROPER D EFENCE AT LEAST ON DEMAND AFTER SUBMISSION OF THE RETURN IN COMPLIANCE WI TH THE NOTICE. AT THAT STAGE, REFUSAL IS UNWARRANTED IN LAW AND CITATION OF ABSENCE OF PROVISION IN THE ACT TANTAMOUNTS TO CLOSURE OF THE EYE S TO REALITIES. LAW IN FACT PERMITS NO PRIVILEGE IN THAT BEHALF. THE ASSESSEE I S ENTITLED TO CONTEST THE ISSUE EFFECTIVELY. THIS IS POSSIBLE ONLY ON OBTAININ G THE REASONS. IT CANNOT BE GAINSAID THAT THE SATISFACTION OF THE CONDIT IONS, BEING SINE QUA NON, CAN BE JUDGED ONLY ON THE BASIS OF THE REASONS. R EFUSAL IS, THUS, ARBITRARY AND PREJUDICIAL. HOWEVER, FOR THIS LAPSE, T HIS POINT NOW PALES INTO INSIGNIFICANCE BECAUSE THE REASONS HAVE SINCE BEEN FURNI SHED. AS SUCH, THE DEBATE CENTRED ROUND THE NECESSITY OF DECLARATION OF THE POSITION OF LAW.' 6. THE JURISDICTIONAL BOMBAY HIGH COURT IN CIT VS. V IDESH SANCHAR NIGAM LTD. (21 TAXMANN.COM 53)(BOM) DATED 20.7.2011 ALSO HELD THAT REASONS RECORDED FOR REOPENING MUST BE FURNISHED BEFOR E THE COMPLETION OF ASSESSMENT. THE RELEVANT PORTION OF THE ORDER IS REPRODU CED BELOW FOR READY REFERENCE : '1. WHETHER THE TRIBUNAL WAS JUSTIFIED IN CANCELLI NG THE REOPENING OF THE ASSESSMENT IS THE QUESTION RAISED IN THIS AP PEAL. 2. THE FINDING OF FACT RECORDED BY THE INCOME-TAX A PPELLATE TRIBUNAL IS THAT IN THE PRESENT CASE THE REASONS RE CORDED FOR REOPENING OF THE ASSESSMENT THOUGH REPEATEDLY ASKED BY THE AS SESSEE WERE FURNISHED ONLY AFTER COMPLETION OF THE ASSESSMENT. THE TRIBUNAL FOLLOWING THE JUDGMENT OF THIS COURT IN THE CASE OF CIT V. FOMENTO RESORTS AND HOTELS LTD., INCOME-TAX APPEAL NO. 71 OF 2006 DECIDED ON NOVEMBER 27, 2006. HAS HELD THAT THOUGH THE REOPENI NG OF THE ASSESSMENT IS WITHIN THREE YEARS FROM THE END OF TH E RELEVANT 4 ASSESSMENT YEAR, SINCE THE REASONS RECORDED FOR REO PENING OF THE ASSESSMENT WERE NOT FURNISHED TO THE ASSESSEE TILL THE COMPLETION OF ASSESSMENT, THE REASSESSMENT ORDER CANNOT BE UPHELD . MOREOVER, SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE DECISION OF TINS COURT IN THE CASE OF CIT V. FOMENTO RESORTS AND HOT ELS LTD. HAS BEEN DISMISSED BY THE APEX COURT, VIDE ORDER DATED JULY 16 , 2007. 3. IN THIS VIEW OF THE MATTER, THE PRESENT APPEAL IS ALSO DISMISSED WITH NO ORDER AS TO COSTS.' 7. IN A LATEST DECISION DATED 29.06.2012, THE 'E' BE NCH OF MUMBAI I TAT IN TATA INTERNATIONAL LTD. VS. DCIT (52 SOT 465) FOL LOWED THE JURISDICTIONAL HIGH COURT'S ORDER IN VIDESH SANCHAR NIGAM LTD., IN Q UASHING THE REASSESSMENT PROCEEDINGS ON THIS VERY GROUND, IT IS SEEN THAT THE APPELLANT HAS RELIED ON THE FOLLOWING JUDGMENTS -ALSO FOR THE PR OPOSITION THAT COMMUNICATION OF REASONS IS MANDATORY FOR THE RE-ASSESSM ENT PROCEEDINGS : I) GUJARAT FLUOROCHEMICALS LTD. VS. DCIT (2008) 15 DT R (GUJ.) 1 II) NANDLAL TEJMAL KOTHARI VS. INSPECTING ACIT (1998) 230 ITR 943 (SC) III) BHABASHCHANDRA PANT VS. ITO (2010) 41 SOT 390 (K OL) TM 26-09-2011 ISSUE OF NOTICE U/S.148 04-11-2011 FILING OF RETURN BY THE APPELLANT IN RE SPONSE TO 148 NOTICE 14-12-2011 REQUEST BY THE APPELLANT FOR FURNISHING TH E REASONS RECORDED. 15-12-2011 DATE ON WHICH ASSESSMENT ORDER IS PASSED. 16-12-2011 COMMUNICATION OF REASONS FOR INITIATION OF 147 PROCEEDINGS 9. FROM THE ABOVE, IT IS CLEAR THAT APPELLANT WAS NE VER PROVIDED THE REASONS FOR INITIATION OF 147 PROCEEDINGS TILL THE ASSESSM ENT ORDER WAS PASSED BY THE ASSESSING OFFICER. RESPECTFULLY FOLLOWING TH E VARIOUS HIGH COURT DECISIONS INCLUDING JURISDICTIONAL HIGH COURT DE CISION REPRODUCED IN THE PRECEDING PARAGRAPHS, IT IS HELD THAT THE ISSUANCE OF 148 NOTICE AND CONSEQUENTIAL REASSESSMENT PROCEEDINGS ARE BAD IN LAW AN D DESERVE TO BE QUASHED. ADDITIONAL GROUND OF APPEAL FOR ALL THE FOU R ASSESSMENT YEARS IS THEREFORE, ALLOWED. 10. EVEN OTHERWISE, CORNING TO THE MERITS OF TH E CASE, IT IS SEEN THAT THE ONLY REASON GIVEN BY THE ASSESSING OFFICER FOR BRINGING TO TAX THE UNUTILIZED SURPLUS OF THE APPELLANT TRUST FOR ALL THE FOUR YEARS I S THAT THE APPELLANT HAS NOT FURNISHED FORM NO- 10 R.W. RULE 17 OF I.T. RULE S. IT IS SEEN THAT THE APPELLANT IS REQUIRED UNDER THE PROVISIONS OF SEC. 11 (2)(A) TO FURNISH THE SAID FORM TO THE ASSESSING OFFICER SPECIFYING THE PUR POSE AND THE PERIOD FOR WHICH INCOME HAS BEEN ACCUMULATED OR SET APART IN CASE SUCH SURPLUS IS NOT IN EXCESS OF 15% OF THE INCOME OF THE TRUST. FROM THE AUDITED ACCOUNTS WHICH ARE FURNISHED BEFORE ME, IT IS SEEN THAT NONE OF THE ASSESSMENT YEARS THE SURPLUS EXCEEDS 15% OF THE TOTAL INCOME OF THE TRUST. THE POSITION OF SURPLUS AS A PERCENTAGE O F THE TOTAL INCOME IN THE RELEVANT A.Y. IS AS FOLLOWS : A.Y. TOTAL INCOME SURPLUS (% OF TOTAL INCOME) 2007-08 RS.2,97,81,716 RS.30,39,301 (10.2%) 2008-09 RS.3,00,86,234 RS.33,64,256 (11.1%) 2009-10 RS.3,45,39,015 RS.14,02,385 (4.06%) 2010-11 RS.3,74,20,673 RS.14,32,106 (3.52%) 5 THEREFORE, EVEN ON MERITS THE REASSESSMENT PROCEEDINGS DO NOT STAND. THEREFORE, GROUNDS NO.1 TO 6 TAKEN BY THE APPELLANT ARE ALLOWED. 11. FOR THE STATISTICAL PURPOSE, THE APPEAL IS ALLOWED . 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E-TAX (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND C IRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) GROSSLY ERRED IN QUASHING THE RE-ASSESSMENT FOR THE A.Y. 2009 -10 ON THE GROUND THAT THE ASSESSEE WAS NEVER PROVIDED THE REA SONS FOR INITIATING PROCEEDINGS U/S.147 TILL THE ASSESSMENT O RDER WAS MADE BY THE ASSESSING OFFICER, WHEN, IN FACT, THE ASSESSEE HAD NOT REQUESTED FOR BEING PROVIDED WITH THE REASONS FOR I NITIATION OF PROCEEDINGS U/S.147 FOR THE A.Y. 2009-10 (ASSESSEE H AD ASKED FOR THE REASON FOR REOPENING THE ASSESSMENT FOR THE A.Y S. 2007-08, 2008- 09 AND 2010-11 VIDE ITS LETTER DATED 14.12.2011.) 3. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGE D AT THE TIME OF THE HEARING, THE ORDER OF THE LEARNED COMMI SSIONER OF INCOME-TAX (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURSE OF THE APPELLATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE T O THE FACT THAT IN THE INSTANT CASE THE ASSESSING OFFICER PASSED THE ORDER ON 15-1 2-2011. FROM THE SEQUENCE OF EVENTS GIVEN BY THE LD.CIT(A) AT PARA 8 OF THE ORDER AS WELL AS THE GROUND RAISED BY THE REVENUE, IT IS SEEN THAT T HE ASSESSEE HAD ASKED FOR THE REASONS FOR RE-OPENING THE ASSESSMENT VIDE ITS LETTER DATED 14-12-2011. FROM THE DETAILS FURNISHED BY THE LD.CIT(A) IT IS S EEN THAT THE REASONS WERE 6 COMMUNICATED TO THE ASSESSEE ON 16-12-2011, I.E. AF TER THE COMPLETION OF THE ASSESSMENT. THE HONBLE BOMBAY HIGH COURT IN T HE CASE OF CIT VS. VIDESH SANCHAR NIGAM LTD. REPORTED IN 340 ITR 60 HA S HELD THAT WHEN REASONS RECORDED FOR RE-OPENING OF THE ASSESSMENT W ERE NOT FURNISHED TO THE ASSESSEE TILL THE COMPLETION OF THE ASSESSMENT, THE RE-ASSESSMENT ORDER CANNOT BE UPHELD. SIMILAR VIEW HAS BEEN TAKEN BY T HE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT CENTRAL CIRCLE, BANGA LORE VS. FOMENTO RESORTS AND HOTELS LTD. VIDE TAX APPEAL NO.71 OF 20 06 ORDER DATED 27-11- 2006. FURTHER, ALTHOUGH UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE LD.CIT(A) QUASHED THE RE-ASSESSMENT PROCEEDINGS FOR A.YRS. 2007-08 AND 2008-09 WHEREIN THE ASSESSING OFFICER HAD DETERMINE D THE INCOME AT RS.30,39,301/- AND RS.33,64,256/- RESPECTIVELY, THE REVENUE HAS NOT FILED ANY APPEAL AGAINST THE ABOVE 2 ASSESSMENT YEARS. 6.1 THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SHIVSA GAR ESTATE REPORTED IN 257 ITR 59 AND UNION OF INDIA AND OTHERS VS. KAUMUD INI NARAYAN DALAL AND ANOTHER REPORTED IN 249 ITR 219 TO THE PROPOSIT ION THAT WHEN NO APPEAL HAS BEEN FILED AGAINST THE ORDER FOR EARLIER ASSESSMENT YEAR ON IDENTICAL FACTS/DECISION APPEAL WAS LIABLE TO BE DI SMISSED. SINCE IN THE INSTANT CASE THE ASSESSING OFFICER HAS NOT SUPPLIED THE REASONS FOR RE- OPENING BEFORE COMPLETION OF THE ASSESSMENT AND SIN CE NO APPEAL HAS BEEN FILED BY THE REVENUE FOR THE 2 PRECEDING ASSESSMENT YEARS UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THEREFORE, WE DO NOT FIND ANY MERITS IN THE GROUNDS RAISED BY THE REVENUE. ACCORDINGLY, THE APPEAL FIL ED BY THE REVENUE IS DISMISSED. 7 ITA NO.580/PN/2013 (A.Y. 2010-11) : 7. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. THE ORDER OF THE LD.CIT (A) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD.CIT (A) GROSSLY ERRED IN QUASHING THE ASSESS MENT FOR THE A.Y. 2010-11 ON THE GROUND THAT THE ASSESSEE WAS NOT P ROVIDED THE REASONS FOR INITIATION OF PROCEEDINGS U/S.147 TILL THE ASSESSMENT ORDER WAS MADE BY THE ASSESSING OFFICER WHEN, IN FA CT, A REGULAR ASSESSMENT HAD BEEN MADE FOR THIS ASSESSMENT YEAR B Y ISSUE OF NOTICES U/S.143(2) AND 142 (L) AND THE SAME ASSESSMENT WAS MADE U/S. 143(3) OF THE INCOME -TAX ACT, 1961. 3. THE LD.CIT (A) GROSSLY ERRED IN HOLDING THAT TH E ASSESSEE HAD APPLIED MORE THAN 85% OF ITS TOTAL INCOME TO CHA RITABLE PURPOSES WITHOUT REALIZING THAT THE ASSESSEE WAS GR ANTED REGISTRATION U/S.12A ONLY WITH EFFECT FROM THE ASSE SSMENT YEAR 2012-13 AND, THEREFORE, FOR ALL THE ASSESSMENT YEAR S PRIOR TO THE ASSESSMENT YEAR 2012-13, INCLUDING THE SUBJECT ASSESSME NT YEAR, APPLICATION OF INCOME AS PER SECTION 11(1) (A) WAS NOT AT ALL RELEVANT. 4. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME-TAX(APPEALS) MAY BE VACATED AND THAT OF THE A SSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURS E OF THE APPELLATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 8. AFTER HEARING BOTH THE SIDES WE FIND THE LD.CIT( A) VIDE HER CONSOLIDATED ORDER DATED 03-12-2012 DECIDED THE APP EAL FOR THE IMPUGNED ASSESSMENT YEAR ALSO HOLDING THAT THE ASSESSING OFF ICER HAD NOT PROVIDED THE REASONS FOR RE-OPENING OF THE ASSESSMENT AND TH AT THE ASSESSEE DOES NOT HAVE SURPLUS EXCEEDING 15% OF THE TOTAL INCOME FOR THE IMPUGNED ASSESSMENT YEAR. FROM THE VARIOUS DETAILS FURNISHE D BY THE ASSESSEE AS WELL AS THE REVENUE WE FIND THE ASSESSEE VIDE LETTER DAT ED 14-12-2011 HAS ACKNOWLEDGED THAT IT HAS RECEIVED NOTICE U/S.148 FO R A.YRS. 2007-08, 2008- 09 AND 2009-10 WHEREAS HE HAS ASKED FOR REASONS FOR A.YRS. 2007-08, 2008-09 AND 2010-11. THE CONTENTS OF THE LETTER AD DRESSED BY THE ASSESSEE TO THE ASSESSING OFFICER READS AS UNDER : 8 DATE : 14/12/2011 TO, THE OFFICE OF THE INCOME TAX OFFICER, WARD-11(2), PMT BUILDING, SWARGATE, PUNE 411037 REFERENCE : YOUR NOTICE DATED 26/09/2011 U/S.148 OF THE INCOME TAX ACT, 1961. SUBJECT : REASONS FOR INITIATING PROCEEDINGS U/S.147 OF THE INCOME TAX ACT, 1961. RESPECTED SIR, WITH REFERENCE TO SUBJECT MATTED CITED ABOVE WE HAV E RECEIVED NOTICE U/S.148 OF THE INCOME TAX ACT, 1961 IN RESPECT OF JOG EDUCATIONAL TRUST FOR ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10. BUT AFTER ATTENDING YOUR OFFICE AND MAKING NECESSARY SUBMISSIONS W E HAVE NOT YET RECEIVED REASONS FOR INITIATING PROCEEDINGS U/S.147 OF THE INCOME TAX ACT, 1961. HENCE, WE REQUEST YOU TO ISSUE US REASONS FOR INITIATING PROCEEDINGS U/S.147 OF THE INCOME TAX ACT, 1961, FOR ASSESSMENT YEAR S 2007-08, 2008- 09 AND 2010-11. THANKING YOU, YOURS FAITHFULLY, FOR V.S. KARMARK & CO. 8.1 FROM THE LETTER ADDRESSED BY THE ASSESSING OFFI CER TO THE TRUST WE FIND THE ASSESSING OFFICER HAS SUPPLIED THE REASONS FOR A.YRS. 2007-08, 2008-09 AND 2009-10 WHICH READS AS UNDER : NO.PN/WD.11(2)/148/REASONS/JOG/EDU./2011-12 DT. DEC EMBER 16, 2011 THE MANAGING TRUSTEE, JOG EDUCATIONAL TRUST, 'PUSHKARAJ' 1205/2/4, SHIVAJINAGAR, PUNE-411004 SIR, SUB: REASONS FOR INITIATING PROCEEDINGS U/S. 147 OF THE INCOME-TAX ACT, 1961-A.YS. 2007-08 TO 2009-10. ***** 9 PLEASE REFER TO YOUR LETTER DATED 14-12-2011, ON THE CAPTIONED SUBJECT REQUESTING FOR FURNISHING REASONS FOR ISSUE OF NOTICE U/S. 148 OF THE ACT FOR ASSESSMENT YEARS 2007-08 TO 2009-10. AS YOU HAD NOT REQUE STED FOR SUPPLYING THE REASONS DURING THE COURSE OF SCRUTINY ASSESS MENT PROCEEDINGS, THEY WERE NOT PROVIDED TO YOU. NOW SINCE YOU HAVE REQUISITIONED FOR THE SAME, THE REASONS, BEING IDENTIC AL FOR ALL THE ABOVE MENTIONED ASSESSMENT YEARS, EXCEPT THE RESPECTIVE CHANGE IN ASSESSMENT YEAR, ARE AS UNDER: REASONS FOR INITIATING PROCEEDINGS U/S. 147 OF THE I.T. ACT, 1961. FOR ASSESSMENT YEARS 2007-08, 2008-09 AND 2009-10 'THE CAPTIONED TRUST HAS BEEN CREATED ON 5-1-1991. HO WEVER, IT HAS APPLIED FOR REGISTRATION U/S. 12A OF THE INCOME-TAX A CT, 1961, AS LATE AS ON 31-3-2011. IN ITS APPLICATION FOR CONDONATION OF DEL AY IN SUBMITTING THE APPLICATION FOR REGISTRATION, THE DELAY HAS BEEN ATTR IBUTED TO LATE SHRI SUHAS JOG, WHO WAS LOOKING AFTER THE TRUST MATTERS. IT IS STA TED THAT SHRI SUHAS JOG EXPIRED ON 23-1-2010 AND DUE TO HIS ILLNESS FOR A PERI OD OF LAST 5 YEARS, THE PROCEDURE OF REGISTRATION WAS PENDING. '2. DURING THE COURSE OF PROCESSING OF ITS APPLICATION FOR REGISTRATION U/S. 12A, FROM THE INCOME & EXPENDITURE ACCOUNT, IT WAS NOTICED THAT THOUGH THE TRUST HAS GENERATED SURPLUS, IT HAS NOT FILED FORM NO. 10, READ WITH RULE 17 OF THE I.T. RULES, 1962. HENCE, IN ORDE R TO ASCERTAIN THE FACTUAL POSITION FOR ASSESSMENT YEAR 2007-08 / 2008-09 / 2009-10 , THE CASE HAS BEEN REOPENED BY ISSUE OF NOTICE U/S. 148 OF THE I.T. ACT, 1961.' YOURS FAITHFULLY, SD/- (R.H. BOKIL) INCOME-TAX OFFICER, WARD-11(2),PUNE. 8.2 FROM THE COPY OF THE ASSESSMENT ORDER WE FIND T HE ASSESSMENT ORDER DOES NOT SAY ANYWHERE THAT ANY NOTICE U/S.147 WAS I SSUED TO THE ASSESSEE OR THE ORDER HAS BEEN COMPLETED U/S.143(3)/147. HOWEV ER, WE FIND THE LD.CIT(A) HAS HELD THAT ASSESSING OFFICER HAD ISSUE D NOTICE U/S.148 FOR ALL THE 4 YEARS, I.E. FROM A.YRS 2007-08 TO 2010-11. T HEREFORE, THIS FINDING OF THE LD.CIT(A) IS CONTRARY TO FACTS AS BROUGHT TO OU R NOTICE. FURTHER, AT PARA 5 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HA S MENTIONED THAT THE TRUST HAS BEEN REGISTERED U/S.12A OF THE ACT ONLY W .E.F. 01-04-2010 WHEREAS THE REVENUE IN ITS GROUND OF APPEAL HAS MENTIONED T HAT THE ASSESSEE TRUST 10 WAS GRANTED REGISTRATION U/S.12A W.E.F. A.Y. 2012-1 3. THEREFORE, IT APPEARS THAT THERE ARE CERTAIN FACTUAL INACCURACIES IN THE ORDER OF THE LD.CIT(A) SINCE CORRECT FACTS WERE NEVER BROUGHT TO HER NOTIC E. UNDER THESE CIRCUMSTANCES, WE DEEM IT PROPER TO RESTORE THE ISS UE TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO VERIFY THE RECORDS AN D PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GR OUNDS RAISED BY THE REVENUE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PUR POSES. 9. IN THE RESULT, ITA NO.579/PN/2013 FILED BY THE R EVENUE IS DISMISSED AND ITA NO.580/PN/2013 FILED BY THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 26-02-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED 26 TH FEBRUARY 2014 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE