The ACIT, 1(1), V. M/s. Madhya Pradesh Rajya Pathya Pustak Nigam,

ITA 625/IND/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1510 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-11-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 05-11-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T K SHAH
• Keywords: Opportunity of being heard; Benefit of exemption; Set aside
• Section: 12A; 11

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.186/IND/2009 AY: 2006-07 M.P. TEXT BOOK CORPORATION, PUSTAK BHAWAN, JAIL ROAD, BHOPAL (PAN AAAAM 0318 C) ..APPELLANT V/S. ACIT-1(1), BHOPAL ..RESPONDENT AND ITA NOS.623 TO 626/IND/2007 AYS: 1999-00, 2003-04, 2004-05 ACIT-1(1), BHOPAL ..APPELLANT V/S. MADHYA PRADESH RAJYA PATHYA PUSTAK NIGAM, BEHIND CENTRAL SCHOOL, ARERA HILLS, BHOPAL (PAN AAAAM 0318 C) ..RESPONDENT DEPARTMENT BY : SHRI T.K. SHAH, CIT, DR ASSESSEE BY : SHRI PRAKASH JAIN, CA ORDER PER JOGINDER SINGH, JM PAGE 2 OF 5 THIS IS BUNCH OF FIVE APPEALS WHEREIN THE ASSESSEE IS IN APPEAL FOR ASSESSMENT YEAR 2006-07 AND FOR THE REMAINING THE R EVENUE IS IN APPEALS FOR DIFFERENT ASSESSMENT YEARS. FIRST WE SHALL TAKE UP APPEAL OF THE ASSESSEE (ITA NO.186/IND/2009) WHEREIN FOLLOWING GROUNDS HAVE BEE N RAISED: 1. THAT IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS BAD IN LAW AS WELL AS ON THE FACTS, IT IS BASED ON INCORRECT INTERPRET ATION OF LAW AND THE FACTS HAVE ALSO BEEN INCORRECTLY CONSTRUED. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT ERRED IN NOT APPRECIATING THE FACT THAT APPELLANT IS ENTITLE D TO CLAIM EXEMPTION U/S 11 OF THE IT ACT AS ITS APPLICATION FOR EXEMPTI ON U/S 12A IS PENDING BEFORE THE CIT. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE IS A OTHER EDUCATIONAL INSTITUTION FINANCED BY THE GOVT. OF MP AND ACCORDI NGLY ITS INCOME IS EXEMPT U/S 10(23C)(IIIAB). WITHOUT PREJUDICE TO THE ABOVE 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE APPELLANT SOC IETY IS SUBSTANTIALLY FINANCED BY THE GOVT. AND EXIST SOLELY FOR THE EDUC ATIONAL PURPOSES CONSEQUENT THERE TO ENTITLE FOR EXEMPTION U/S 10(23 C)(VI). PAGE 3 OF 5 DURING HEARING OF THIS APPEAL, WE HAVE HEARD LD. RE PRESENTATIVES FROM BOTH SIDES AND CONSIDERED THE ARGUMENTS ADVANCED BY THEM. AT THE OUTSET, THE LD. COUNSEL FOR ASSESSEE DID NOT PRESS GROUND N O.3 & 4 ABOVE, THEREFORE, BOTH THESE GROUNDS ARE DISMISSED AS NOT PRESSED. FO R GROUND NO.2, IT WAS POINTED OUT THAT THE TRIBUNAL HAS ALREADY GRANTED R EGISTRATION U/S 12A, THEREFORE, THE ASSESSEE IS NOT AGGRIEVED FOR WHICH OUR ATTENTION WAS INVITED TO PAGE 35 TO 58 OF THE PAPER BOOK (ORDER OF THE TRIBU NAL DATED 23.9.2009). FOR GROUND NO.1, IT WAS POINTED OUT THAT IDENTICAL ISSU E WAS REMANDED BACK BY THE HONBLE JURISDICTIONAL HIGH COURT, THAT TOO IN THE CASE OF THE ASSESSEE (MITA NO.56 OF 2003) VIDE ORDER DATED 2.4.2009, THEREFORE , IT WAS PRAYED THAT THE APPEAL OF THE ASSESSEE MAY ALSO BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THIS ASSERTION OF THE LD. COUNSE L FOR ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE BEING FACTUALLY CORRECT . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REP RESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON THE FIL E. IN THE LIGHT OF THE ABOVE, THE RELEVANT PARA 18 OF THE AFORESAID ORDER DATED 2 .4.2009 IS REPRODUCED HEREUNDER: IN VIEW OF THE AFORESAID ANALYSIS AND REGARD BEING HAD TO THE CONCEPT OF EDUCATIONAL PURPOSE AS IS UNDERSTOOD IN THE CONTEXT OF SECTION 10(22) OF THE ACT, WE ARE OF THE CONSIDERED OPINION THAT THE FORUMS BELOW HAVE REALLY NOT APPLIED THEIR MIND TO THE RELEVANT ISSUE. IT IS WORTH NOTHING THERE HAS BEEN NO DISSECTION OF THE ROLE PLAYED BY THE CORPORATION AND WHETHER ITS ACTIVITY HAS ANY NEXUS WITH THE EDUCATIONAL PURPOSE AS PER THE PRINCIPLES PAGE 4 OF 5 LAID DOWN BY THEIR LORDSHIPS OF THE APEX COURT AND VARIOUS HIGH COURTS. WE ARE DISPOSED TO THINK THAT THERE HAS TO BE DETAILED ANALYSIS OF THE FACTS PERTAINING TO THE ACTIVITIES CARRIED OUT BY THE ASSOCIATION FROM YEAR TO YEAR AND THEREAFTER ARRIVE AT A CONCLUSION WHETHER THE ASSESSEE IS ENTITLED TO GET THE BENEFIT OF EXEMPTION. BE IT NOTED, THE EXEMPTION NEED NOT BE IN ENTIRETY OR TOTALITY. THER E CAN BE A CASE WHERE THERE CAN BE A PARTIAL EXEMPTION IF THE INCOME OF THE PREVIOUS YEAR FALLS WITHIN THE BASIC CONCEPTUALITY OF SECTION 10(22) OF THE ACT. BEREFT OF THE AFORESAID ANALYSIS, THE ORDE RS ARE UNSUSTAINABLE. HENCE, IT WOULD BE APPOSITE TO SET ASIDE THE ORDER PASSED BY THE FORUMS IN ALL THE APPEALS AND REMIT THE MATTER TO THE ASSESSING OFFICER TO CONSIDER THE CASE AFTER AFFORDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. IT WOULD BE OPEN TO THE ASSESSEE CORPORATION TO FILE REQUISITE DOCUMENTS TO BRING THE CASE WITHIN THE PARAMETERS OF LAW WHICH WE HAVE REFERRED TO ABOVE. IN THE LIGHT OF THE ABOVE AND ALSO THAT THE ORDER OF THE TRIBUNAL GRANTING REGISTRATION U/S 12A WAS NOT AVAILABLE WIT H THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT, THEREFORE, THE IMPUGNED G ROUND IS REMANDED BACK TO THE FILE OF LD. ASSESSING OFFICER ON IDENTICAL DIRECTIONS AS CONTAINED IN THE AFORESAID ORDER OF THE HONBLE HIGH COURT. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE, CONSEQUENTLY, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES ONLY. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY AL LOWED FOR STATISTICAL PURPOSES. NOW WE SHALL TAKE UP THE APPEALS OF THE REVENUE (I TA NO.623 TO 626/IND/2007). THE LD. REPRESENTATIVES FROM BOTH TH E SIDES CANVASSED THAT PAGE 5 OF 5 THESE APPEALS MAY ALSO BE REMANDED BACK TO THE FILE OF THE LD ASSESSING OFFICER, THEREFORE, WITHOUT DELIBERATING UPON THE I SSUE INVOLVED AND THE ASSERTION MADE BY THE LD. COUNSEL FROM BOTH SIDES, THESE APPEALS OF THE REVENUE ARE ALSO REMANDED TO THE FILE OF THE LD. AO , KEEPING IN VIEW THE ARGUMENTS/DECISION IN ITA NO.186/IND/2009 AND THE D IRECTION OF THE HONBLE JURISDICTIONAL HIGH COURT CONTAINED IN ORDER DATED 2.4.2009, THESE APPEALS OF THE REVENUE ARE ALSO ALLOWED FOR STATISTICAL PURPOS ES. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY AL LOWED FOR STATISTICAL PURPOSES AND THAT OF THE REVENUE ARE ALSO ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AFTER THE CONCLUSIO N OF THE HEARING ON 4.11.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4.11.2009 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR