The Asstt. Commissioner of Income Tax 3(1), Bhopal V. M/s. Canyon Education Society., Bhopal

ITA 621/IND/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54039 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 06-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority; Tax effect
• Section: 12A; 12; 10; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.621/IND/2010 A.Y. 2007-08 ASSTT. COMMISSIONER OF INCOME TAX 3(1), BHOPAL ... APPELLANT VS M/S. CANYON EDUCATION SOCIETY, BHOPAL PAN AAAAC 1528 N ... RESPONDENT AND, CO NO.03/IND/2011 (ARISING OUT OF ITA NO.621/IND/2010) A.Y. 2007-08 M/S. CANYON EDUCATION SOCIETY, BHOPAL PAN AAAAC 1528 N ... APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 3(1), BHOPAL ... RES PONDENT 2 DEPARTMENT BY : SHRI ARUN DEWAN ASESSEE BY : SHRI A.H.ANSARI, ADVOCATE DATE OF HEARING : 01.11.2011 DATE OF PRONOUNCEMENT : 05.12.2011 O R D E R PER JOGINDER SINGH BY WAY OF THIS APPEAL THE REVENUE IS BEFORE US ON T HE SOLITARY GROUND THAT THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS), ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WAS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICE R TO ALLOW EXEMPTION U/S 10 (23C) EVEN THOUGH THE ASSESSEE HA S NOT APPLIED FOR THE SAME TO THE PRESCRIBED AUTHORITY AN D THE GROSS RECEIPTS OF THE SOCIETY EXCEEDED RS.1 CRORE. WHEREA S THE ASSESSEE BY WAY OF CROSS OBJECTION HAS TAKEN THE GR OUND THAT THE TAX LIABILITY ON THE ASSESSEE IS NIL AND FURTHE R THE DEPARTMENT IS NOT PERMITTED TO FILE THE APPEAL BEFO RE THE TRIBUNAL AS THE TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT. 2. DURING HEARING, THE LEARNED SENIOR DR SHR I ARUN DEWAN STRONGLY CONTENDED THAT THE LD.CIT(A) ERRED IN DIRE CTING THE 3 ASSESSING OFFICER TO ALLOW EXEMPTION U/S 10(23C) OF THE ACT SPECIALLY WHEN THE GROSS RECEIPTS OF THE ASSESSEE S OCIETY EXCEEDED RS.1 CRORE. ON THE OTHER HAND, THE LD. COU NSEL FOR THE ASSESSEE ALSO CONTENDED THAT THE ASSESSEE NEVER APP LIED FOR EXEMPTION U/S 10(23C) OF THE ACT AND ALSO ASSERTED THAT THE GROSS RECEIPT ARE BELOW RS. 1CRORE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS RUNNING AN EDUCATIONAL INSTITUTION AND IS REGISTER ED WITH THE REGISTRAR OF FIRMS AND SOCIETIES, DECLARED NIL INCO ME IN ITS RETURN FILED ON 31.10.2007. SINCE THE GROSS RECEIPTS OF AS SESSEE DURING THE YEAR EXCEEDED ONE CRORE, IT WAS REQUIRED TO APPLY AND GET EXEMPTION U/S 10(23C) WHICH THE ASSESSEE FA ILED, THEREFORE, LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTIN G THE ASSESSING OFFICER TO ALLOW EXEMPTION U/S 10(23C) OF THE ACT. THE REGISTRATION U/S 12A WAS GRANTED TO THE ASSESSEE WI TH EFFECT FROM 1.04.2006 (FROM AY 2007-08 ONWARDS) AS PER ORD ER OF LD. CIT(A) DATED 27.4.2010 AND WAS PRODUCED BEFORE THE 4 ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS MEANING THEREBY THE SOCIETY WAS NOT REGISTERED FOR THE F.Y. 2006-07. SINCE THE ASSESSEE BEFORE US CLAIMED THAT THE SOCIE TY DID NOT APPLIED FOR EXEMPTION U/S 10(23C) OF THE ACT, THERE FORE THE FACTS ARE NOT CLEAR AS TO HOW THE ASSESSING OFFICER WAS D IRECTED TO ALLOW EXEMPTION TO THE ASSESSEE SOCIETY U/S 10(23C) OF THE ACT SPECIALLY WHEN THE UNCONTROVERTED FACT REMAINS THAT THE TOTAL GROSS RECEIPTS ARE TO THE TUNE OF RS.1,34,15,783/- AND NECESSARY PERMISSION U/S 10(23C) WAS NOT OBTAINED F ROM THE COMPETENT AUTHORITY. IN THE INTEREST OF JUSTICE, TH E APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSES SEE ARE REMANDED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AND EXAMINATION OF FACTS IN ACCORDANCE WITH PROVISIONS OF SECTION 11 & 12 OF THE I.T. ACT. CONS EQUENTLY THE APPEAL AS WELL AS THE CROSS OBJECTION ARE ALLOWED F OR STATISTICAL PURPOSES ONLY. 5 THIS ORDER WAS PRONOUNCED IN THE OPEN C OURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 05.11.2011. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05.11.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE