M/s Cane Development Council, Bahraich V. The Income Tax Officer-1, Bahraich

ITA 63/LKW/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87834 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Keywords: Opportunity of being heard
• Section: 6; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO. 63/LKW/2014 ASSESSMENT YEAR: 2010 - 11 M/S CANE DEVELOPMENT COUNCIL CHILWARIA BAHRAICH V . INCOME TAX OFFICER - 1 BAHRAICH T AN /PAN : AAATC6087H (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. SHUBHAM RASTOGI, FCA RESPONDENT BY: SHRI. PUNIT KUMAR, D.R. DATE OF HEARING: 30 03 201 5 DATE OF PRONOUNCEMENT: 31 0 3 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE LD. C. I. T. (APPEALS)-II, LUCKNOW ERRED ON FAC TS AND IN LAW IN UPHOLDING THE ORDER OF THE LD. A. O. WITHOUT APPRECIATING THE FACTS, CIRCUMSTANCES, RULES, REGUL ATIONS AND MATERIAL ON RECORD. 2. THE LD. C. I. T. (A)- DID NOT APPRECIATED THE EFFEC T OF STATUTORY PROVISION OF U.P. SUGAR CANE (REGULATION OF SUPPLY AND PURCHASE) ACT, 1953 AND THE RULES MADE THERE UNDER, THE RECEIVING ARE NOT INCOME U/S 2(24) OF THE I. T. ACT . IN ACCORDANCE TO THESE PROVISIONS TOTAL RECEIVING CANN OT BE TREATED AS 'INCOME'. 3. THE LD. C.I.T. (A) DID NOT APPRECIATED THAT AS PER THE SUGAR :-2-: CANE (REGULATION OF SUPPLY AND PURCHASE) ACT, 1953 AND THE RULES MADE THERE UNDER, IT IS MANDATORY ON THE ASSE SSEE TO UTILIZE THE ENTIRE AMOUNT OF 'CONTRIBUTION IN THE FORM OF COMMISSION' RECEIVED FROM SUGAR MILLS AND CO-OPERATIVE CANE GROWERS SOCIETY AND 'GRANTS', RECEIVED FROM STATE GOVERNMENT AND CENTRAL SUGAR CANE COMMITTEES FOR SP ECIFIED PURPOSES BEING 'CONSTRUCTION OF ROAD' AND 'OTHER DEVELOPMENT WORKS' IN THE 'ASSIGNED AREA' EITHER DURING THE YEAR OF RECEIPT OR IN SUBSEQUENT YEAR /S AND NO T OTHERWISE. ACCORDINGLY, THE ENTIRE RECEIVING CANNOT BE TREATED AS INCOME UNDER SECTION 2(24) OF I. T. ACT. 4. THE LD. C. I. T. (APPEALS), DID NOT APPRECIATED THA T APPELLANT HAS RECEIVED 'CONTRIBUTION IN THE FORM OF COMMISSION' AND 'GRANTS' IN ACCORDANCE WITH THE ACT AND RULES MADE BY STATE GOVERNMENT TO BE UTILIZED ONLY FOR 'SPECIFIC PROJECTS' OR 'WORK' AND THERE IS NO PROVISION UNDER THE SAID ACT/RULE AUTHORIZING THE ASSESSEE TO DO ANY BUSINESS ACTIVIT Y WITH PROFIT MOTIVE. 5. THAT AS PER SAID ACT/RULE, ASSESSEE IS MERELY A FUN D MANAGEMENT BODY WITHOUT ANY RIGHT OF ABSOLUTE OWNER SHIP OVER THE FUND PLACE AT ITS DISPOSAL. FOR THE ROAD C ONSTRUCTION AND DEVELOPMENT WORK ALSO BELONGS TO THE GOVERNMENT AS ABSOLUTE. 6. THAT THERE IS NO PROVISION UNDER THE AFORESAID ACT / RULES MADE THERE UNDER AUTHORIZING THE APPELLANT TO UTILI ZE THE RECEIVING TO DISTRIBUTE IT OR ANY PART OF IT TO ANY BODY AS PROFIT / INCOME. 7. THAT THERE IS NO FINDING BY LOWER AUTHORITY THAT TH E ASSESSEE HAS UTILIZED THE COMMISSION AMOUNT AND OTHER GRANT IN AIDS FOR ANY OTHER PURPOSE. 8. THE LD. C.I.T. (APPEALS) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADHOC DISALLOWANCE BEING 50% OUT OF EXPENSES DE BITED AND CLAIMED BY THE ASSESSEE OTHER THAN ADMINISTRATI VE :-3-: EXPENSES WITHOUT BRINGING ANY CONTRARY MATERIAL ON RECORD. 9. THE ADDITIONS UPHELD ARE HIGHLY EXCESSIVE, CONTRARY TO THE FACTS, LAW, RULES, REGULATIONS AND PRINCIPLE OF NAT URAL JUSTICE WITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO HAVE IT S SAY ON THE REASONS RELIED UPON BY HIM. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS CONTENDED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FO R ASSESSMENT YEAR 2009- 10. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE LIGHT OF THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2009-10, THE ORDER OF THE LD. CIT(A) IN THE IMPUGNED ASSESSMENT YEAR MAY KINDLY BE SET ASIDE AN D THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO RE -EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE ARGUMENTS RAISED BY TH E ASSESSEE. 3. THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER A UTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISP UTEDLY AN IDENTICAL ISSUE WAS EXAMINED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009-10, IN WHICH THE TRIBUNAL HAS RESTORED TH E MATTER TO THE FILE OF THE ASSESSING OFFICER. THE RELEVANT OBSERVATIONS O F THE TRIBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 9. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOW ER AUTHORITIES AND JUDGMENTS FILED BEFORE US IN THE LIGHT OF RIVAL SUB MISSIONS, WE ARE OF THE CONSIDERED VIEW THAT SINCE THE ABOVE GRANTS OR RECEIPTS ARE RECEIVED BY THE ASSESSEE EITHER FROM THE GOVERNMENT OR ANY OTHER AGENCY FOR A PARTICULAR PURPOSE AND ASSESSEE HAS NO INDEPENDENT RIGHT OVER IT, IT WOULD NOT PARTAKE THE CHARACTER O F INCOME U/S 2 (24) OF THE ACT. THOUGH, THIS ARGUMENT WAS NOT RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND THE ASSESSEE HAD B EEN CLAIMING DEDUCTION U/S 80P (2) OF THE ACT OR EXEMPTION U/S 1 1 OF THE ACT, BUT :-4-: THE GROUND OR ARGUMENT RAISED BEFORE US IS PLAUSIBL E AND LEGAL. THEREFORE, IT REQUIRE THE PROPER ADJUDICATION. 10. IN THE AFORESAID ORDER OF THE TRIBUNAL, IT HAS BEEN HELD THAT THE GRANT IN AID OR ANY OTHER RECEIPT WHICH WERE NOT PR ODUCT OF NORMAL BUSINESS ACTIVITY OF THE ASSESSEE, IT COULD NOT BE TERMED AS REVENUE RECEIPT, SO AS TO FORM PART OF THE TOTAL INCOME. 11. IN THE CASE OF ITO VS CANE DEVELOPMENT COUNCIL (SUPRA), THE SIMILAR ISSUE WAS RAISED ON SIMILAR FACTS AND FINDI NG FORCE IN THE CONTENTION OF THE ASSESSEE, THE TRIBUNAL HAS RESTOR ED THE MATTER TO THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE A SSESSEE IN LIGHT OF THESE SUBMISSIONS. THE RELEVANT PORTION OF THE ORDE R OF THE TRIBUNAL IS EXTRACTED AS UNDER :- 9. CONSIDERING THE WRITTEN SUBMISSIONS FILED BEFOR E THE BENCH, IT WAS SEEN THAT ON BEHALF THE ASSESSEE IT HAS BEEN CANVAS SED THAT THE ASSESSEE COMPANY HAS BEEN ESTABLISHED BY AN ORDER D ATED 06.04.1989 PASSED BY THE CANE COMMISSIONER OF U.P. IN EXERCISE OF POWERS U/S 5 OF THE U.P. SUGAR CANE (REGULATION OF SUPPLY AND PURCHASES) ACT 1953 R/W RULE 8 OF THE U.P. SUGAR CA NE (REGULATION OF SUPPLY AND PURCHASES) RULES 1954. ON DIVISION OF TH E U.P. STATE AND FORMATION OF UTTRAKHAND STATE LATER ON, THESE ACT A ND RULES HAVE BEEN ADOPTED BY THE UTTRAKHAND STATE ALSO AS IT. TH E FUNCTIONING AND ACTIVITIES OF THE ASSESSEE ARE STATED TO BE GOVERNE D BY THE PROVISIONS MADE UNDER THIS ACT AND RULES. IT HAS ALSO BEEN SUB MITTED THAT AS PER SECTION 6 OF THE SAID ACT, THE FUNCTIONS OF THE ASSESSEEE ARE THAT IT CARRIES OUT ONLY THE DEVELOPMENT ACTIVITIES IN T HE AREA ASSIGNED TO IT BY THE CANE COMMISSIONER OF THE STATE. IT WAS ALSO SUBMITTED IN THE WRITTEN SUBMISSIONS THAT THERE IS NO PROVISION UNDE R THE SAID-ACT/RULE AUTHORIZING THE APPELLANT TO DO ANY BUSINESS ACTIVI TY WITH PROFIT MOTIVE OR TO EARN ANY INCOME/PROFIT AND THE APPELLA NT CARRIES OUT THE DEVELOPMENT ACTIVITIES AS SPECIFIED UNDER AFORESAID ACT ON NO PROFIT NO LOSS BASIS. THE APPELLANT IS MERELY A FUND MANAG EMENT BODY :-5-: WITHOUT ANY RIGHT OF ABSOLUTE OWNERSHIP OVER THE FU NDS PLACED AT ITS DISPOSAL. IT IS FURTHER MENTIONED HERE THAT THE SAI D ROADS, CULVERTS, ETC. ARE CONSTRUCTED BY THE APPELLANT ON THE LAND B ELONGING TO THE GOVT. AND CONSTRUCTIONS MADE BY THE APPELLANT THERE ON ALSO BELONGS TO THE GOVT. AS ABSOLUTE OWNER AND NOT TO THE APPEL LANT OR ANYBODY ELSE. THE FUNDS RECEIVED BY THE ASSEESSEE ARE EITHE R BY WAY OF (A) VOLUNTARY GRANT FROM THE CENTRAL OR STATE GOVT. OR (B) CONTRIBUTION IN THE NAME OF COMMISSION FROM THE SUGAR MILLS, AS PRO VIDED U/S 8 OF THE AFORESAID ACT. AS PER RULE 49 OF THE AFORESAID RULES, THIS CONTRIBUTION AMOUNT IN THE NAME OF COMMISSION IS WO RKED OUT THE SUGAR MILL WITH REFERENCE TO THE AMOUNT OF PURCHASE OF THE SUGAR CANE BY IT FROM THE CANE GROWERS ARE THE CANE GROWE RS COOPERATIVE SOCIETY. ADDRESSING THE AMOUNT THE COMMISSION, IT I S STATED THAT IT IS WORKED OUT AND PAID BY THE SUGAR MILL TO THE APPELL ANT, IS NOT SOLD/SUPPLIED BY THE APPELLANT TO THE SUGAR MILL NO R ANY SERVICE IS RENDERED BY THE APPELLANT TO THE SUGAR MILL PAYING AMOUNT IN THE NAME OF COMMISSION TO THE APPELLANT AS THERE IS NO PROVISION UNDER THE AFORESAID ACT AND RULE FOR IT, HENCE THE AMOUNT PAID BY THE SUGAR MILL TO THE APPELLANT THOUGHT IS IN THE NAME OF COM MISSION BUT, IN FACT, IT IS JUST A CONTRIBUTION AMOUNT. REFERRING T O THE MANDATORY PROVISION MADE UNDER RULE 49A, THE ENTIRE AMOUNT OF SAID COMMISSION, WHICH IS, IN FACT, JUST A CONTRIBUTION AMOUNT, IS REQUIRED TO BE UTILIZED ON SPECIFIC PURPOSE OF CONSTRUCTION OF ROAD ETC. AND OTHER DEVELOPMENT ACTIVITIES ARE ASSIGNED TO THE AP PELLANT AND NOT OTHERWISE. IT IS FURTHER SUBMITTED THAT THERE IS NO PROVISION UNDER AFORESAID ACT/RULES MADE THERE UNDER AUTHORIZING TH E APPELLANT TO UTILIZED THE SAID AMOUNT OF SAID CONTRIBUTION PAID IN THE NAME OF COMMISSION FOR ANY PURPOSE OR TO DISTRIBUTE IT OR A NY PART OF IT TO ANYBODY AS PROFIT/INCOME. IT IS ALSO BEEN SUBMITTED THAT IN THE PRESENT CASE THE ASSESSEE HAS NEITHER DISTRIBUTED T HE SAID CONTRIBUTION AMOUNT RECEIVED IN THE NAME OF COMMISS ION TO ANYBODY NOT UTILIZED IT FOR ANY PURPOSE OTHER THAN THAT FOR WHICH IT HAS BEEN PAID TO THE APPELLANT. IT HAS ALSO STATED THAT THER E IS NO FINDING BY ANY LOWER AUTHORITIES THAT THE ASSESSEE HAS UTILIZE D THE COMMISSION :-6-: AMOUNT FOR ANY PURPOSE SIMILARLY THE SURPLUS NOT SPEND IS FULLY COVERED BE THE ORDER OF THE DELHI BENCH IN N.S. COM MITTEE, VILLAGE THANABHAWAN, TEHSIL SHAMIL, DISTT.- MUZAFFARNAGAR ORDER COPY FILED. 10. IN THE LIGHT OF WRITTEN SUBMISSIONS ADVANCED BY THE ASSESSEE QUA THE DEPARTMENTAL GROUNDS AND GROUNDS OF THE ASSESSE E WHEREIN SUBMISSION ON BEHALF OF THE REVENUE HAVE ALREADY BE EN ADDRESSED IN THE EARLIER PART OF THIS ORDER. WE ARE THE VIEW THA T GROUND NO. 1, 2 & 3 IN THE APPEALS OF THE ASSESSEE DESERVES TO BE DIS MISSED AS THE SAME HAVE NOT BEEN ADDRESSED IN THE WRITTEN SUBMISS ION AND IT IS PRESUMED THAT THE ASSESSEE HAS NOTHING TO SAY. THE FINDING OF THE CIT(A) REPRODUCED IN THE EARLIER PART OF THIS ORDER AS SUCH ARE CONFIRMED. QUA THE GROUNDS 4, 5 & 6 OF THE ASSESSEE AND DEPARTMENTAL GROUNDS 1 & 2, THE FINDINGS ARRIVED AT IN PARA 6.6, THE SAME IS MODIFIED AND THE ISSUE IS RESTORED TO THE F ILE OF THE AO WITH THE DIRECTION TO ADDRESS THE SPECIFIC PROVISIONS TO THE EXTENT THAT THE AO SHALL LOOK INTO THE SPECIFIC RULES AND SECTIONS WHICH THE ASSESSEE WANTS THE CANVASS IN SUPPORT ITS CLAIM FOR THE SAID PURPOSE, ASSESSEE HAS RELIED ON THE ORDER OF CO ORDINATE BENCH IN ITA NO.154/DEL/2008 IN THE CASE OF CIT VS N.S. COMMITTEE, VILLAGE THA NABHAWAN, TEHSIL SHAMLI, DISTT. MUZAFFARNAGAR WHEREIN THE DEPARTM ENTAL GROUNDS AGITATING THE ISSUE OF ANSHDAN AND NIRMAN YOGNA FUN D HAS TAKEN A VIEW IN PARA 6 WHICH READS AS UNDER :- WE HAVE HEARD THE LD. DR AND GONE THROUGH FACTS ON THE CASE INDISPUTABLY, THE ANSH DAN AND FUND FOR NIRMAN YOJNA, WHERE GIVEN TO THE ASSESSEE BY THE STATE GOVERNMENT & SUGAR FACTORIES FOR SPECIFIC PROJECTS OF THE ROAD CONSTRU CTION AND AS POINTED OUT BY THE LD.CIT(A) THIS FUNDS HAVE BEEN S PEND ALSO FOR THOSE SPECIFIC PROJECT. THERE IS NOTHING TO SUG GEST THAT THE ASSESSEE IS CARRYING ON ANY BUSINESS ACTIVITIES, GE NERATING INCOME. ACCORDINGLY, THE LD. CIT(A) CONCLUDED THAT THERE WAS NO SURPLUS WITH THE ASSESSEE AND THEREFORE, THERE W AS NO :-7-: QUESTION OF ANY TAXABLE INCOME. ADMITTEDLY, THE GRA NT-IN-AID IN QUESTION IS A FINANCIAL AID OR SUBSIDY GIVEN BY THE STATE GOVERNMENT OF UP AND SUGAR FACTORIES FOR THE SPECIF IC PURPOSE OF CONSTRUCTION OF ROADS. IN SECTION 2 (24) OF THE ACT, IT IS DECLARED THAT INCOME INCLUDES VARIOUS ITEMS WHICH ARE ENUMERATED THEREIN IN CLAUSES (I) TO (XV). IN THE S AID SECTION 2(24), SUCH A GRANT-IN-AID HAS NOT BEEN SPECIFICALL Y INCLUDED AS AN INCOME OR A REVENUE RECEIPT. THEREFORE, CONSIDER ING THE USE FOR THE WORKED INCLUDE IN SECTION 2(24), THE WORD INCOME SHALL BE CONSTRUED AS COMPREHENDING NOT ONLY THOSE ITEMS WHICH SAID SECTION DECLARED THAT THESE SHALL INCLUD E BUT ALSO SUCH ITEMS WHICH SAID SECTION DECLARES THAT THESE S HALL INCLUDE BUT ALSO SUCH ITEMS AS IT SIGNIFIED ACCORDING TO IT S NATURAL IMPORT. SINCE SECTION 2(24) HAS NOT DECLARED THAT S UCH A GRANT- IN-AID SHALL BE INCLUDED IN THE INCOME THE WORD RE VENUE SHALL BE CONSTRUED AS COMPREHENDING WHAT IT SIGNIFIED ACC ORDING TO ITS NATURAL IMPORT. IN RELATION TO A BUSINESS UNDE RTAKING, THE WORD REVENUE CONNOTES INCOMINGS OF THE UNDERTAKIN G WHICH ARE PRODUCTS OF THE NORMAL WORKING OF THE UNDERTAKI NG. THE GIVING OF FINANCIAL AID OR SUBSIDY TO THE AFORESAID COMMITTEE, WHICH ADMITTEDLY IS NOT CARRYING ON ANY BUSINESS, I S AT THE DISCRETION OF THE GOVERNMENT OR SUGAR FACTORS. THUS , THE GRANT-IN-AID IN QUESTION WAS NOT A PRODUCT OF THE N ORMAL BUSINESS ACTIVITIES OF THE ASSESSEE COMMITTEE, ASSE SSED BY THE AO AS A LOCAL AUTHORITY. THEREFORE, SUCH A GRANT-IN -AID COULD NOT BE TERMED AS A REVENUE RECEIPT SO AS TO FORM PA RT OF THE TOTAL INCOME. AS ALREADY POINTED OUT, THE LD CIT(A) CONCLUDED THAT THE AFORESAID FUNDS RECEIVED BY THE ASSESSEE F ROM STATE GOVERNMENT AND SUGAR FACTORIES HAVE BEEN SPEND ONLY FOR THOSE SPECIFIC PROJECTS AND THERE WAS NO SURPLUS WI TH THE ASSESSEE. SINCE THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL, CONTROVERTING THESE FINDINGS OF FACTS REC ORDED BY THE LD. CIT(A) SO AS TO ENABLE US TO TAKE A DIFFERENT V IEW IN THE MATTER, THERE IS NO BASIS TO INTERFERE WITH HIS FIN DINGS. :-8-: CONSEQUENTLY, GROUND NO. 1 TO 3 IN THE APPEAL IS DI SMISSED. ACCORDINGLY THE AO SHALL DECIDE THE ISSUE IN ACCORD ANCE WITH LAW QUA GROUND NO-4, 5 & 6 OF THE ASSESSEE AND GROU ND NO-W & 2 OF THE REVENUE IN LINE WITH THE ORDER OF THE CO -ORDINATE BENCH. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE A FFORDING A REASONABLE OPPORTUNITY OF BEING HEARD. 12. IN THE CASE OF CIT VS U.P. UPBHOKTA SAHKARISANG H LTD. (SUPRA), THE HONBLE ALLAHABAD HIGH COURT HAS HELD THAT WHER E THE AMOUNT WAS GIVEN BY THE STATE GOVERNMENT FOR SPECIFIC PURP OSE, IT DID NOT PARTAKE OF THE NATURE OF THE ASSESSEE. EVEN IF IT W AS TREATED AS AN INCOME, IT WOULD NOT BE LIABLE TO TAX AS IT WAS STA TED THAT THERE WAS DIVERSION OF THE INCOME BY WAY OF OVERRIDING TITLES ON THE SAID AMOUNT BY THE WAY OF CONDITION. 13. IN THE CASE OF DIT VS. SOCIETY FOR DEVELOPMENT ALTERNATIVES IN ITA NOS.12 OF 2012 AND 18 OF 2012, THE HONBLE HIGH COURT OF DELHI HAS ALSO DEALT WITH SIMILAR ISSUE AND HAS HELD THAT WHERE ASSESSEE RECEIVED GRANTS FOR SPECIFIC PURPOSES FROM THE GOVE RNMENT, NON GOVERNMENT AND FOREIGN INSTITUTION ETC. AND THESE G RANTS WERE TO BE SPENT AS PER TERMS& CONDITIONS OF THE PROJECT GRANT AND THE AMOUNT REMAINED UNSPENT AT THE END OF THE YEAR, GOT SPILLE D OVER TO THE NEXT YEAR, IT WAS NOT AN INCOME OF THE ASSESSEE. 14. SIMILAR IS THE POSITION IN THE INSTANT CASE AS THE ASSESSEE HAS NO INDEPENDENT RIGHT TO USE THE GRANT IN A MANNER IN W HICH IT LIKES. IT HAS TO BE UTILIZED FOR A PARTICULAR PURPOSE IN TERM S OF GRANTS. SINCE THESE ARGUMENTS ARE RAISED FIRST TIME BEFORE THE TR IBUNAL, WE ARE OF THE VIEW THAT THIS ASPECT SHOULD BE EXAMINED BY THE ASSESSING OFFICER WHILE ASSESSING THE INCOME OF THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) & RESTORE THE MAT TER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO THE REE XAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE NEW ARGUMENT. :-9-: 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 5. SINCE THE TRIBUNAL, ON IDENTICAL ISSUE, HAS RESTORE D THE MATTER TO THE FILE OF THE ASSESSING OFFICER IN THE IMMEDIATELY PR ECEDING YEAR, WE FIND NO JUSTIFICATION TO TAKE A CONTRARY VIEW IN THIS APPEA L AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE M ATTER TO THE FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE CLAIM OF THE AS SESSEE IN THE LIGHT OF THE ARGUMENTS RAISED BY THE ASSESSEE IN TERMS INDICATED IN THE AFORESAID ORDER OF THE TRIBUNAL. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:31 ST MARCH, 2015 JJ:3003 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR