M/s. Shiv Mandir Sant Sewa Ashram, Jammu V. The Income-tax Officer, Jammu

ITA 647/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0701 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A N MISHRA
• Assessee Lawyers: K R JAIN
• Keywords: Charitable institution
• Section: 147; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.647(ASR)/2014 ASSESSMENT YEAR:2009-10 PAN:AAJTS2210G M/S. SHIV MANDIR SANT SEWA VS. INCOME TAX OFFICER , ASHRAM CHARITABLE TRUST, WARD 1(3), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.R. JAIN, ADV. RESPONDENT BY: SH. A.N. MISHRA, DR DATE OF HEARING: 25/05/2016 DATE OF PRONOUNCEMENT: 25/05/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2009-10, AGAINST THE ORDER, DATED 26.08.2014, PASSED BY THE LD. CIT(A), JAMMU. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THAT THE ORDER OF THE ITO ASKING THE ADDITIONS OF RS.9,65,486/- AND RS.51,000 IS WRONG, ILLEGAL AND A GAINST FACTS AND LIKEWISE CIT(A) IS NOT JUSTIFIED WHILE C ONFIRMING THE CASE. 2. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FAC T OF THE CASE AND PROCEEDED TO MAKE THE ADDITION ARBITRARILY. 3. THAT THE APPELLANT IS A RELIGIOUS AND CHARITABLE TRUST AND HAVE UTILIZED 85% OF THE FUNDS IN ACCORDANCE WITH T HE OBJECT OF THE TRUST. ITA NO.647(ASR)/2014 ASSESSMENT YEAR: 2009-10 2 4. THAT THE LD. CIT(A) HAS FURTHER ERRED IN AW AND ON FACTS WHILE MAKING AN ADDITION OF RS.51,000/- ON ACCOUNT OF DON ATION MADE TO AMARNATH SANGARSH SAMITI. 2. THE ASSESSEE HAS ALSO FILED THE FOLLOWING ADDITI ONAL GROUND: THAT CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE DI SMISSING THE APPEAL WITHOUT CONSIDERING THE AMENDED PROVISIONS O F SECTION 12A(2) OF THE INCOME TAX ACT. 3. THE ADDITIONAL GROUND IS ADMITTED, BEING A LEGAL GROUND. 4. APROPOS THE ADDITIONAL GROUND, THE LD. COUNSEL F OR THE ASSESSEE HAS CONTENDED THAT SECTION 12A(2) OF THE ACT HAS BEEN A MENDED BY THE FINANCE (NO.2) ACT, 2014 BY INTRODUCING THREE PROV ISOS THEREIN W.E.F. 01.10.2014, THAT HOWEVER, AS PER THE FIRST PROVISO ITSELF, WHERE THE REGISTRATION HAS BEEN GRANTED TO THE TRUST OR INSTI TUTION UNDER SECTION 12AA, THE PROVISIONS OF SECTIONS 11 AND 12 SHALL AP PLY IN RESPECT OF ANY INCOME DERIVED FROM PROPERTY HELD UNDER TRUST OF AN Y ASSESSMENT YEAR PRECEDING THE AFORESAID ASSESSMENT YEAR, FOR WHICH ASSESSMENT PROCEEDINGS ARE PENDING BEFORE THE AO AS ON THE DAT E OF SUCH REGISTRATION. IT HAS BEEN SUBMITTED THAT IN CIT V S. MAYUR FOUNDATION, 274 ITR 562 (GUJ.), IT HAS BEEN HELD THAT WHEN A MA TTER IS PENDING BEFORE THE TRIBUNAL BY WAY OF AN APPEAL, THE ASSESS MENT PROCEEDING CAN BE SAID TO BE PENDING; AND THAT IT CANNOT BE CONTE NDED THAT THE ASSESSMENT PROCEEDING COME TO AN END WHEN THE ASSES SMENT ORDER IS FRAMED. 5. THE LD. DR, ON THE OTHER HAND, PLACED STRONG REL IANCE ON THE IMPUGNED ORDER. ITA NO.647(ASR)/2014 ASSESSMENT YEAR: 2009-10 3 6. HAVING HEARD THE RIVAL CONTENTIONS ON THIS ISSUE , WE FIND THE GRIEVANCE OF THE ASSESSEE TO BE CORRECT. BY WAY OF THE AFORESAID AMENDMENT, THE FOLLOWING THREE PROVISOS HAVE BEEN A DDED TO SECTION 12A(2) BY THE FINANCE (NO.2), ACT, 2014: PROVIDED THAT WHERE REGISTRATION HAS BEEN GRANTED TO THE TRUST OR INSTITUTION UNDER SECTION 12AA, THEM, THE PROVISION S OF SECTIONS 11 AND 12 SHALL APPLY IN RESPECT OF ANY INCOME DERIVE D FROM PROPERTY HELD UNDER TRUST OF ANY ASSESSMENT YEAR PRECEDING T HE AFORESAID ASSESSMENT YEAR, FOR WHICH ASSESSMENT PROCEEDINGS A RE PENDING BEFORE THE ASSESSING OFFICER AS ON THE DATE OF SUCH REGISTRATION AND THE OBJECTS AND ACTIVITIES OF SUCH TRUST OR INSTITU TION REMAIN THE SAME FOR SUCH PRECEDING ASSESSMENT YEAR: PROVIDED FURTHER THAT NO ACTION U/S 147 SHALL BE TA KEN BY THE ASSESSING OFFICER IN THE CASE OF SUCH TRUST OR INST ITUTION FOR ANY ASSESSMENT YEAR PRECEDING THE AFORESAID ASSESSMENT YEAR ONLY FOR NON-REGISTRATION OF SUCH TRUST OR INSTITUTION FOR T HE SAID ASSESSMENT YEAR: PROVIDED ALSO THAT THE PROVISIONS CONTAINED IN THE FIRST AND SECOND PROVISOS SHALL APPLY IN THE CASE OF ANY TRUST OR IN STITUTION WHICH WAS REFUSED REGISTRATION OR THE REGISTRATION GRAN TED TO IT WAS CANCELLED AT ANY TIME UNDER SECTION 12AA. 7. A BARE PERUSAL OF THE FIRST PROVISO TO SECTION 1 2A(2) MAKES IT EVIDENT THAT THE AFORESAID AMENDMENT IS SQUARELY AP PLICABLE TO PENDING CASES. THOUGH THE FIRST PROVISO TALKS OF PENDENCY O F PROCEEDINGS BEFORE THE AO, PENDENCY OF PROCEEDINGS BEFORE THE TRIBUN AL IS ONLY A CONTINUATION OF THE ASSESSMENT PROCEEDINGS AS HELD IN THE CASE OF CIT VS. MAYUR FOUNDATION (SUPRA). ITA NO.647(ASR)/2014 ASSESSMENT YEAR: 2009-10 4 8. MOREOVER, THE LD. CIT(A) IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09 VIDE ORDER, DATED 24.11.2015 (COPY PLA CED ON RECORD), HAS HELD AS FOLLOWS: I HAVE GONE THROUGH THE AMENDED PROVISIONS OF SECT ION 12A(2) OF THE INCOME TAX ACT AND INCLINED TO ACCEPT THE INTERPRET ATION MADE BY THE APPELLANT COUNSEL AS THE AMENDED PROVISIONS PROVIDE THAT IN ALL PENDING ASSESSMENT PROCEEDINGS BEFORE THE AO THE PR OVISIONS PROVIDE THAT IN ALL PENDING ASSESSMENT PROCEEDING B EFORE THE AO THE PROVISIONS OF SECTION 11 AND 12 SHALL APPLY IN RESP ECT OF ANY INCOME DERIVED FROM PROPERTY HELD UNDER TRUST OF ANY ASSES SMENT YEAR PRECEDING THE RELEVANT ASSESSMENT YEAR. THUS, THE A SSESSEE TRUST WAS ENTITLED TO CLAIM BENEFIT U/S 11 AND 12 AS PER AMENDED PROVISIONS OF THE ACT AND THE ADDITION MADE BY THE AO ON THIS COUNT IS DELETED. 9. THUS, IT IS EVIDENT THAT THE LD. CIT(A) HAS ACC EPTED THE APPLICABILITY OF THE AMENDED PROVISIONS OF SECTION 12A(2) OF THE ACT, IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09. 10. IT IS IN ACCORDANCE THEREWITH, THAT FOR THE ASS ESSMENT YEAR 2008- 09, BENEFIT UNDER SECTION 11 AND 12 WAS ACCORDED T O THE ASSESSEE, AS PER THE AMENDED PROVISIONS OF THE ACT AND THE ADDIT ION MADE BY THE AO WAS DELETED. 11. NOW, OBVIOUSLY, THE FACTS AND CIRCUMSTANCES FO R THE ASSESSMENT YEAR PRESENTLY BEFORE US, I.E., A.Y. 2009-10 ARE NO T ANY DIFFERENT FROM THOSE PRESENT FOR THE ASSESSMENT YEAR 2008-09. THER EFORE, A SIMILAR POSITION IS APPLICABLE TO THE ASSESSMENT YEAR 2009 -10. ACCORDINGLY, FOR THIS YEAR ALSO, THE BENEFIT UNDER SECTIONS 11 & 12 IS GRANTED TO THE ITA NO.647(ASR)/2014 ASSESSMENT YEAR: 2009-10 5 ASSESSEE, IN ACCORDANCE WITH THE AMENDED PROVISIONS OF SECTION12A(2) AND THE ADDITION MADE BY THE AO IS DELETED. 12. THE ADDITIONAL GROUND AND GROUND NOS. 1 TO 3 AR E, THUS, ACCEPTED. 13. APROPOS GROUND NO.4, NEITHER BEFORE THE AUTHORI TIES BELOW, NOR EVEN BEFORE US HAS ANY EVIDENCE BEEN PRODUCED BY TH E ASSESSEE THAT THE INSTITUTION TO WHICH THE DONATION OF RS.51,000/- WA S MADE BY THE ASSESSEE, HAS OBTAINED EXEMPTION CERTIFICATE UNDER SECTION 80G(5) OF THE ACT. HENCE, THE DISALLOWANCE IS CONFIRMED. GROUND N O.4 IS REJECTED. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/05/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 25/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SHIV MANDIR SANT SEWA ASHRAM CHAR ITABLE TRUST, JAMMU. 2. THE ITO WARD 1(3), JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER