ADIT (E)I(1), MUMBAI V. MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE, MUMBAI

ITA 6258/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9270 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-01-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S J SINGH
• Assessee Lawyers: SUDHIR BAHETI
• Keywords: Charitable institution; Reason to believe
• Section: 147; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , BEFORE SHRI B. R. BASKARAN, AM AND SHRI SANJAY GAR G, JM ./ I.T.A. NOS. 6258 TO 6260/MUM/2011 ( / ASSESSMENT YEARS: 2003-04 TO 2005-06) ADDL. DIT(E)-1(1), ROOM NO. 504, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI-400 012 / VS. MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE CENTRAL BLDG., 3 RD FLOOR, SECTOR-18, VASHI, NAVI MUMBAI ./! ./PAN/GIR NO. AABTM 6722 G ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : SHRI S. J. SINGH #$ ' % & / RESPONDENT BY : SHRI SUDHIR BAHETI & SHRI MAHAVIR ATAL ' () % *+ / DATE OF HEARING : 13.01.2015 ,-./ % *+ / DATE OF PRONOUNCEMENT : 11.03.2015 0 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE ABOVE TILTED THREE APPEALS RELATING TO THE SAME ASSESSEE HAVE BEEN PREFERRED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A) AL L DATED 09.06.2011. THE FACTS AND THE ISSUES BEING IDENTICAL IN NATURE, HENCE, THE SAME A RE TAKEN TOGETHER FOR DISPOSAL BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, THE FACT S HAVE BEEN TAKEN FROM ITA NO. 6258/MUM/2011 FOR A.Y. 2003-04. THE REVENUE HAS AGI TATED THE ACTION OF THE LD. CIT(A) IN ANNULLING THE REASSESSMENT MADE BY THE A.O. U/S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). 2 ITA NOS. 6258 TO 6260/MUM/2011 (A.Y. 03-04 TO 05-06 ) ADDL. DIT(E) VS. MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE ITA NO. 6258/MUM/2011 FOR A.Y. 2003-04 2. THE BRIEF FACTS ARE THAT THE ASSESSING OFFICER ( A.O.) HAD NOTED THAT THE ASSESSEE WAS REGISTERED U/S.12A OF THE ACT. THE ASSESSEE HAD FAILED TO FURNISH THE AUDIT REPORT U/S.12AA IN FORM NO. 10 ALONG WITH THE RETURN OF IN COME. THEREFORE, THE BENEFIT OF SECTION 11 WAS NOT ALLOWABLE TO THE ASSESSEE. THE A .O., THEREFORE, OBSERVED THAT THE INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT. HE, THEREFORE, REOPENED THE ASSESSMENT BY ISSUANCE OF NOTICE U/S.148 OF THE ACT. THE LD. C IT(A), HOWEVER, SET ASIDE THE REOPENING, OBSERVING THAT THE REOPENING HAD BEEN MA DE BY THE A.O. ON THE GROUND THAT THE ASSESSEE HAD FAILED TO FURNISH THE AUDIT REPORT U/S.12AA OF THE ACT. HE OBSERVED THAT THE ORIGINAL RETURN WAS FILED BY THE ASSESSEE ON 27 .12.2003 AND THE ASSESSMENT WAS MADE DETERMINING THE TOTAL INCOME OF RS.13,68,54,780/-. SUBSEQUENTLY, THE REGISTRATION WAS GRANTED TO THE ASSESSEE U/S.12A OF THE ACT. THE ASS ESSEE FILED AN APPLICATION U/S.264 OF THE ACT REQUESTING TO SET ASIDE AND SEND BACK THE F ILE TO THE A.O. TO RE-DETERMINE THE INCOME TAKING INTO ACCOUNT THAT THE ASSESSEE HAD BE EN GRANTED REGISTRATION U/S.12A AS CHARITABLE INSTITUTION. THE ORIGINAL ASSESSMENT, TH EREFORE, WAS CANCELLED BY THE DIRECTOR OF INCOME TAX (EXEMPTION) U/S.264 WITH A DIRECTION TO MAKE A FRESH ASSESSMENT. FORM NO. 10 WAS FILED BY THE ASSESSEE ALONG WITH THE REV ISED RETURN OF INCOME PURSUANT TO THE ORDER OF THE DIT(E) PASSED U/S. 264 OF THE ACT. THE LD. CIT(A), THEREFORE, OBSERVED THAT THE REASON RECORDED BY THE A.O. THAT THE ASSESSEE H AD NOT FILED FORM NO. 10 WAS NOT FACTUALLY CORRECT. THE FACT THAT FORM NO. 10 WAS FI LED WAS EVIDENCED FROM THE RECORD. THE REOPENING, THEREFORE, WAS INVALID. HE, THEREFORE, H ELD THAT THE A.O. WAS NOT HAVING ANY REASON TO BELIEVE THAT ANY INCOME OF THE ASSESSEE H AS ESCAPED ASSESSMENT. HE, THEREFORE ANNULLED THE REASSESSMENT ORDER U/S. 147 PASSED BY THE A.O. 3. ADMITTEDLY, THE VERY REASON ON THE BASIS OF WHIC H THE A.O. FORMED THE INFORMATION THAT THE INCOME OF THE ASSESSEE HAD ESCAPED ASSESSM ENT, WAS FACTUALLY INCORRECT. THE ASSESSEE HAD FILED FORM NO. 10 ALONG WITH THE REVIS ED RETURN AND, THEREFORE, THE REASONS RECORDED BY THE A.O. FOR REOPENING OF THE ASSESSMEN T WERE FACTUALLY INCORRECT. THE LD. CIT(A), THEREFORE, RIGHTLY ANNULLED THE REASSESSMEN T IN THIS CASE. WE DO NOT FIND ANY 3 ITA NOS. 6258 TO 6260/MUM/2011 (A.Y. 03-04 TO 05-06 ) ADDL. DIT(E) VS. MUMBAI AGRICULTURAL PRODUCE MARKET COMMITTEE INFIRMITY IN THE SAID FINDING OF THE LD. CIT(A). TH ERE IS NO MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS, THEREFORE, DISMISSED. 4. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THE FACTS B EING IDENTICAL, ITA NOS. 6259 & 6260/MUM/2011 RELEVANT TO A.YS. 2004-05 & 2005-06, ARE ALSO HEREBY DISMISSED. 5. IN THE RESULT, THE REVENUES APPEALS ARE DISMISS ED. 1/*2 ( % 3 1 % * 45 ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 11, 201 5 SD/- SD/- (B. R. BASKARAN) (SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ' ) MUMBAI; 6 DATED : 11.03.2015 (. ../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 7* ( ) / THE CIT(A) 4. ' 7* / CIT - CONCERNED 5. :( #* ;< , + ;< / , ' ) / DR, ITAT, MUMBAI 6. = >) / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' ) / ITAT, MUMBAI