Shiva Specific Family Trust, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 2(2), RAJKOT-GUJARAT

ITA 602/RJT/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50033 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1987-1988
• Appeal Filed On: 12-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI RAJ KUMAR
• Assessee Lawyers: M P SARDA
• Keywords: Business income; Question of law
• Section: 260A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.602/RJT/2009 (ASSESSMENT YEAR 2005-06) SHRI KAMDAR EDUCATION TRUST VS THE ITO, WD.2(2) VINOD, 2, KARANPARA RAJKOT RAJKOT PAN : AAATK4099H (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MP SARDA RESPONDENT BY : SHRI JAI RAJ KUMAR O R D E R PER AL GEHLOT, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-III, RAJKOT DATED 07-10-2008 FOR THE ASSESSMENT YEAR 200 5-06. THE FOLLOWING EFFECTIVE GROUNDS ARE RAISED IN THE APPEAL: 2. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON FACTS IN NOT GRANTING EXEMPTION U/S 11 AND THE CIT( A) HAS ERRED IN CONFIRMING THE SAME. 3. THE LEARNED ASSESSING OFFICER HA ERRED IN LAW AS WELL AS ON FACTS IN CONSIDERING CHARITABLE ACTIVITIES OF THE TRUST AS BUSINESS ACTIVITIES AND THEREBY TREATING INCOME AS BUSINESS INCOME AND THE CIT(A) HAS ERRED IN CONFIRMING THE S AME. 4. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW A S WELL AS ON FACTS IN NOT GRANTING SET OFF OF BROUGHT FORWARD LO SSES WHILE TREATING TRUSTS INCOME AS BUSINESS INCOME AND THE CIT(A) HAS ERRED IN CONFIRMING THE SAME. 5. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW A S WELL AS ON FACTS IN DISALLOWING LEASE RENT OF RS.7,23,456/- U/ S 40A(2)(B). THE CIT(A) HAS ERRED IN CONFIRMING THE SAME. ITA NO.602 /RJT/2009 2 6. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW A S WELL AS ON FACTS IN DISALLOWING RMC PROPERTY TAX OF RS.16,49,0 93/- U/S 43B. THE CIT(A) HAS ERRED IN CONFIRMING THE SAME. 7. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW A S WELL AS ON FACTS IN DISALLOWING RS.2,76,660/- IN RESPECT OF PR OVIDENT FUND EXPENSES. THE CIT(A) HAS ERRED IN CONFIRMING THE SAME. 2. THE ITAT HAD DECIDED THE APPEAL ON MERIT, VIDE I TS ORDER DATED 19-07- 2010. THE ASSESSEE THEREAFTER FILED MISCELLANEOUS APPLICATION POINTING OUT THAT THE ITAT HAS NOT CONSIDERED THE DECLARATION FILED I N FORM NO.8 U/S 158A FOR AVOIDING REPETITIVE APPEAL BEFORE THE TRIBUNAL. TH E MISCELLANEOUS APPLICATION WAS ALLOWED VIDE ORDER DATED 25-03-2011 IN MA NO.38 /RJT/2010 AND THE MATTER WAS RECALLED AND HEARD AFRESH. THE LD.DR HAS NO OB JECTION IN ACCEPTING THE DECLARATION FILED BY THE ASSESSEE IN FORM NO.8 U/S 158A OF THE I.T. ACT. 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES, RECORD PERUSED. THE ASSESSEE HAS FILED A DECLARATION IN FORM NO.8 U /S 158A OF THE ACT WHEREIN IT IS STATED THAT IDENTICAL ISSUE IS PENDING IN ASSESS EES OWN CASE BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN APPEAL FILED U /S 260A OF THE ACT FOR ASSESSMENT YEAR 2003-04. THE QUESTION OF LAW BEFOR E THE HONBLE HIGH COURT FOR THE ASSESSMENT YEAR 2003-04 AS INFORMED IN FORM NO. 8, IS READS AS BELOW: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN DENYING BENEFIT UNDER SECTION 11 OF THE INCOME TAX ACT, 1961 TO THE APPEL LATE ASSESSEE? IN THE LIGHT OF ABOVE FACTS, WE RESTORE GROUND NO.2 TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO DECIDE THE ISSUE AFRESH IN THE LI GHT OF JUDGMENT OF THE JURISDICTIONAL HIGH COURT FOR THE ASSESSMENT YEAR 2 003-04 IN ASSESSEES OWN CASE, AS AND WHEN IT IS DELIVERED. 4. GROUNDS NO.3 TO 7 ARE STATED TO BE CONSEQUENTIAL TO GROUND NO.2. SINCE GROUND NO.2 HAS BEEN REMITTED TO THE FILE OF THE AS SESSING OFFICER, THE ISSUES IN ITA NO.602 /RJT/2009 3 THESE GROUNDS NO.3 TO 7 ARE ALSO RESTORED TO THE FI LE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DECIDE THE ENTIRE ISSUES AF RESH IN ACCORDANCE WITH LAW AND IN THE LINE WITH THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT FOR THE ASSESSMENT YEAR 2003-04 THAT MAY BE DELIVERED IN DUE COURSE BY THE HONBLE HIGH COURT, AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSES SEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27-05-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 27 TH MAY, 2011 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT(A)-III, RAJKOT 4. THE CIT-II, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT