BREACH CANDY SWIMMING BATH TRUST, MUMBAI V. ITO (E) 1(1), MUMBAI

ITA 6163/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88586 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H N MOHWALA
• Assessee Lawyers: SUBDERHUT SINGH
• Keywords: Cancellation of registration
• Section: 12A; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI . , ! ' ' ' ' #$ %&'( , #) *+ # ! BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 6163/MUM/2013 ( , , , , / ASSESSMENT YEAR :2010-11 BREACH CANDY SWIMMING BATH TRUST, 66, BHULABHAI DESAI ROAD, MUMBAI-400 026 / VS. THE ITO (E)-1(1), PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 +- #) ./ ./ ./ PAN/GIR NO. : AAATB 0133F ( -0 / APPELLANT ) .. ( 12-0 / RESPONDENT ) -0 3 # / APPELLANT BY: SHRI SUBDERHUT SINGH 12-0 4 3 # / RESPONDENT BY: SHRI H.N. MOHWALA 4 5) / DATE OF HEARING :09.03.2015 6, 4 5) / DATE OF PRONOUNCEMENT :09.03.2015 *#7 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-1, MUMBAI DT. 6.9.2013 PERTAINING TO A.Y. 20 10-11. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO OF DENYING THE EXEMPTION U/S. 11 OF THE ACT WHEN THE EXEMPTION IS DENIED TAKING A CUE ITA NO. 6163/M/2013 2 THAT THE REGISTRATION OF THE TRUST WAS CANCELLED U/ S. 12AA(3) OF THE I.T. ACT. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASS ESSEE BROUGHT TO OUR NOTICE TWO ORDERS OF THE TRIBUNAL IN ITA NOS. 1100/ M/2012 AND 3825/M/2013. IT IS THE SAY OF THE LD. COUNSEL THAT WITHDRAWAL/CANCELLATION OF REGISTRATION U/S. 12A OF THE ACT HAS BEEN SET ASIDE BY THE TRIBUNAL IN ITA NO. 1100/M/2012. 4. THE LD. DEPARTMENTAL REPRESENTATIVE IN HIS WRITT EN SUBMISSION STRONGLY OBJECTED AND STATED THAT THE FINDINGS OF T HE TRIBUNAL IN THE TWO DECISIONS RELIED UPON BY THE LD. COUNSEL IN ITA NOS . 1100/M/12 AND 3825/M/13 ARE NOT CONCLUSIVE AND WERE GIVEN WHILE C ONSIDERING THE ISSUE OF REGISTRATION OF THE TRUST. THE LD. DR POINTED O UT THAT THE TRIBUNAL ITSELF HAS HELD THAT RECEIPTS WHICH ARE FROM NON-M EMBERS SUCH AS INTEREST ON DEPOSITS ARE LIABLE TO BE BROUGHT TO TAX. THE L D. DR CONCLUDED BY STATING THAT THE PRESENT CASE IS NOT COVERED BY THE DECISION OF THE TRIBUNAL. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE WRITTEN SUBMISSION MADE BY THE LD. DR BEFORE US . IT IS NOT IN DISPUTE THAT THE TRIBUNAL VIDE ORDER DT. 30.6.2014 IN ITA N O. 1100/M/12 HAS REVERSED THE ORDER OF THE DIT (EXEM) CANCELLING THE REGISTRATION OF THE TRUST. IT IS ALSO NOT IN DISPUTE THAT IN A.Y. 2009 -10, THE PRINCIPLE OF MUTUALITY WAS ABSENT. IN OUR CONSIDERED OPINION, H AVING FOUND THAT THE TRIBUNAL HAS RESTORED THE REGISTRATION OF THE TRUST , ALL THAT NEED TO BE VERIFIED IS WHETHER THE TRUST IS SUBSTANTIALLY COVE RED BY THE PRINCIPLE OF MUTUALITY WHICH REQUIRES VERIFICATION OF FACTS. WE , THEREFORE, RESTORE THE ISSUE TO THE FILE OF THE AO TO DECIDE AFRESH AS PER THE PROVISIONS OF THE LAW KEEPING IN MIND THAT THE REGISTRATION OF THE TRUST HAS BEEN RESTORED BY THE TRIBUNAL. ITA NO. 6163/M/2013 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 9 TH MARCH, 2015 SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) ! / VICE PRESIDENT #) *+ / ACCOUNTANT MEMBER MUMBAI; 8* DATED : 9 TH MARCH, 2015 . . ./ RJ , SR. PS *#7 *#7 *#7 *#7 4 44 4 15% 15% 15% 15% 9#%,5 9#%,5 9#%,5 9#%,5 / COPY OF THE ORDER FORWARDED TO : 1. -0 / THE APPELLANT 2. 12-0 / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. %;< 15 , , / DR, ITAT, MUMBAI 6. < = / GUARD FILE. *#7 *#7 *#7 *#7 / BY ORDER, 2%5 15 //TRUE COPY// / . . . . (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI