I.T.O. WD. 4(4), THANE V. VIDYA VARDHINI, THANE

ITA 5824/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75490 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 21-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH RANJAN PRASAD
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Charitable institution; Additional evidence; Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM ./ I.T.A. NO. 5824/MUM/2012 ( / ASSESSMENT YEAR: 2007-08) INCOME TAX OFFICER, WARD-4(4), QURESHI MANSION, 2 ND FLOOR, NR. TEENHAT NAKA, NAUPADA, THANE (W) / VS. VIDYA VARDHINI C/O. A. V. COLLEGE, VASAI ROAD (W), TAL. VASAI, DIST. THANE, PIN 401 202 ./ ./PAN/GIR NO. AAATV 2687 C ( ! /APPELLANT ) : ( '#! / RESPONDENT ) ! $ % / APPELLANT BY : SHRI RAJESH RANJAN PRASAD '#! $ % / RESPONDENT BY : SHRI SUBODH RATNAPARKHI & ' ( $ ) * / DATE OF HEARING : 27.01.2014 +,- $ ) * / DATE OF PRONOUNCEMENT : 05.02.2014 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE AGITATING AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-I, THANE (CIT(A) FOR SHOR T) DATED 29.06.2012, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2007-08 VIDE ORDER DATED 31.12.2010. 2. EXPLAINING THE BACKGROUND FACTS OF THE CASE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUN SEL, THAT THE ASSESSMENT IN THE INSTANT CASE WAS FRAMED ON THE BASIS AND THE PREMISE THAT T HE ASSESSEE IS NOT REGISTERED U/S.12AA OF THE ACT, AND IS THUS NOT LIABLE TO BE RECOGNIZED AS A CHARITABLE INSTITUTION UNDER THE ACT. 2 ITA NO. 5824/MUM/2012 (A.Y. 2007-08) ITO VS. VIDYA VARDHINI THE ASSESSEES APPEAL AGAINST THE WITHDRAWAL OF ITS REGISTRATION AS A CHARITABLE INSTITUTION UNDER THE ACT STOOD DISPOSED OF BY THE TRIBUNAL (IN ITA NO.6509/MUM/2007 DATED 14.05.2010/PB PGS.5-14) BY RESTORING THE MATTER BAC K TO THE FILE OF THE COMPETENT AUTHORITY, WHO HAS SINCE GRANTED REGISTRATION (VIDE ORDER DATED 19.09.2011 BY CIT-III, THANE). IT IS ON THIS BASIS THAT RELIEF HAD BEEN AL LOWED BY THE LD. CIT(A), TAKING US THROUGH PARA 4 OF THE IMPUGNED ORDER, WHEREIN THE F IRST APPELLATE AUTHORITY ALSO NOTICED THE FACT THAT THE TRIBUNAL HAS, IN VIEW THEREOF, VI DE ITS ORDER DATED 20.01.2012 FOR A.YS. 2001-02 TO 2006-07, SINCE HELD THAT THE REGISTRATIO N HAVING BEEN RESTORED, RELIEF U/S.11 COULD NOT BE DENIED TO THE ASSESSEE. THE REVENUES GROUND NO. 3 IMPUGNS THE RELIEF ALLOWED TO THE ASSESSEE (AT RS.40.25 LACS) IN RESPE CT OF THE TOTAL DONATION RECEIVED AT RS.41.15 LACS ON THE BASIS OF THE CONFIRMATORY LETT ERS FROM THE DONORS CLARIFYING THAT THE DONATIONS WERE TOWARD CORPUS, AND TO THUS EXIGIBLE FOR EXEMPTION U/S.11(1)(D), TAKING US THROUGH THE RELEVANT PART (PARA 4.1) OF THE IMPUGNE D ORDER. THE REVENUES STAND THAT THE ASSESSEE COULD HAVE FURNISHED THE SAME, I.E., THE S AID LETTERS, TO THE SPECIAL AUDITORS, FAILS TO APPRECIATE THAT THE SPECIAL AUDIT WAS FIRSTLY NO T TAKEN UP AT THE INSTANCE OF THE ASSESSEE BUT OF THE REVENUE AND, SECONDLY, WAS FOR A DIFFERE NT YEAR/S. FURTHER, THE ASSESSEE IS NOT IN APPEAL AGAINST THE PART DISALLOWANCE, I.E., FOR RS.90,000/-, SUSTAINED BY THE LD. CIT(A); RATHER, IN FACT, AGAINST THE IMPUGNED ORDER ITSELF. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) COULD NOT REBUT ANY OF THE ASSERTIONS BY THE LD. AR. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE DEPARTMENT HAVING SINCE ADMITTEDLY ALLOWED REGISTRATION TO THE ASSESSEE AS A CHARITABLE INSTITUTION, I.E., IN PURSUANCE TO THE REMAND BY THE TRIBUNAL, E XEMPTION U/S.11 COULD NOT BE DENIED ON THAT BASIS. THE FACT THAT THE REVENUE HAS APPEALED AGAINST THE ORDER BY THE TRIBUNAL BEFORE THE HONBLE HIGH COURT WOULD NOT OPERATE TO STAY IT S OPERATION, SO THAT ITS SEEKING TO ADVANCE ITS CASE ON THAT BASIS IS TO NO AVAIL, EVEN AS CLARIFIED BY THE TRIBUNAL VIDE ITS ORDER IN THE ASSESSEES CASE FOR A.Y. 2008-09 (IN ITA NO. 3777/MUM/2012 DATED 30.10.2013/PB PGS.1-4). THIS WOULD DISPOSE OF THE R EVENUES GROUNDS # 1, 2 & 4, WHICH, THEREFORE, STAND DISMISSED. 3 ITA NO. 5824/MUM/2012 (A.Y. 2007-08) ITO VS. VIDYA VARDHINI 4. AS REGARDS ITS GROUND NO. 3, THE LD. CIT(A) ADMI TTED ADDITIONAL EVIDENCE UNDER RULE 46A, DULY CALLING FOR A REMAND REPORT FROM THE ASSE SSING OFFICER (A.O.), AND WHICH STANDS CONSIDERED, AS APPARENT FROM A READING OF PA RA 3.1 OF HIS ORDER. THE REVENUE HAS NEITHER ASSAILED THE SAID ADMISSION UNDER RULE 46A NOR THE FINDING/S GIVEN ON MERITS BY THE LD. CIT(A) ON THE BASIS OF THE REMAND REPORT AS WELL AS THE EVIDENCE FURNISHED BY THE ASSESSEE. THERE IS NO REFERENCE TO THE SPECIAL AUDI T IN EITHER THE ASSESSMENT ORDER OR EVEN THE APPELLATE ORDER. WE ARE, THEREFORE, UNABLE TO C OMPREHEND THE BASIS OF THE REVENUES GRIEVANCE, WHICH IS, THUS, HELD AS WITHOUT MERIT, L EADING TO THE DISMISSAL OF THE REVENUES RELEVANT GROUND. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . /- )0 $ / $ ) 12 ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 05, 2014 SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER & 3( MUMBAI; 4' DATED : 05.02.2014 .'../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. & 5) ( ) / THE CIT(A) 4. & 5) / CIT - CONCERNED 5. 8 9 ')':; , * :;- , & 3( / DR, ITAT, MUMBAI 6. 9 <= > ( / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , & 3( / ITAT, MUMBAI