The Dy. Commissioner of Income Tax, Chandigarh V. M/s Amritsar Improvement Trust, Amritsar.

ITA 655/ASR/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7865 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-08-2017
• Assessment Year: misc
• Appeal Filed On: 21-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: AMIT HANDA LD
• Section: 143(3); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NOS.655 & 656(ASR)/2015 ASSESSMENT YEAR:2004-05 & 2005-06 DCIT, CIRCLE-1, EXEMPTION CHANDIGARH. VS. M/S AMRITSAR IMPROVEMENT TRUST, C-BLOCK, RANJIT AVENUE, AMRITSAR. PAN: AAJFA-4492K (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (LD. DR) RESPONDENT BY: SH. AMIT HANDA (LD. CA) DATE OF HEARING: 02.08.2017 DATE OF PRONOU NCEMENT: 11.08.2017 ORDER PER N. K. CHOUDHRY: THE REVENUE DEPARTMENT PREFERRED THE INSTANT APPEAL BY FEELING AGGRIEVED AGAINST THE COMMON ORDER DATED 08.09.2015, PASSED BY THE LD. CIT(A)-2, AMRITSAR, RELEVANT TO THE ASST. YEAR 200 4-05 & 2005-06 IN APPEAL NOS.208 & 205/2014-15. 2. THE COMMON GROUNDS HAVE BEEN TAKEN IN BOTH THE A PPEALS, THEREFORE, FOR THE SAKE OF CONVENIENCE AND BREVITY, TH E GROUNDS OF APPEAL IN ITA NO.655(ASR)/2015 HAVE BEEN TAKEN FOR P ROPER DISPOSAL OF THE APPEALS, WHICH ARE REPRODUCED AS UNDER: ITA NOS.655 & 656(ASR)/2015 ASST. YEARS: 2004-05 & 2005-06 2 1. THAT THE ORDER OF LD. CIT(A) IS DEFECTIVE BO TH IN LAW AND FACTS OF THE CASE. 2. THAT THE ORDER OF LD. CIT(A) IS BAD IN LAW A S THE AMENDMENT IN SECTION 2(15) IS EFFECTIVE W.E.F. 01.04.2009 AND TH E ASSESSMENT IN THE CASE HAS BEEN COMPLETED CONSIDERING THE ACTIVITIES OF ASSESSEE WHICH ARE NOT ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY. 3. THAT THE ORDER OF LD. CIT(A) IS BAD IN LAW I N DELETING THE PENALTY U/S 271(L)(C) OF THE ACT, AS THE ASSESSEE HAS FURNI SHING INACCURATE PARTICULARS OF INCOME. 4. THAT THE ORDER OF LD. CIT(A) IS BAD IN LAW BY IGNORING THE RATIO LAID IN THE CASES OF PUDA AND JDA (TO THE EXTENT IM PROVEMENT TRUSTS CARRY OUT LAND DEVELOPMENT IN A SIMILAR MANNER AS D EVELOPMENT AUTHORITIES DO). 5. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL ON OR BEFORE IS HEARD AND DISPOSED OFF. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 01.11.20 04 DECLARING LOSS OF RS.594.92 LACS AND THE CASE WAS ASSESSED U/S 143(3) OF THE ACT ON 06.12.2006 AT A TOTAL INCOME OF RS.8,39,18,160/- WHILE MAKING THE ASSESSMENT THEN ASSESSING OFFICER HAD DISALLOWED THE EXEMPTION U/S 11(1) OF THE ACT BY TREATING THE ACTIVITIES OF THE TRUST AS BUSINESS ACTIVITY A ND ALSO INITIATED PENALTY PROCEEDING UNDER VARIOUS SECTIONS ALO NG WITH PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR FURNISH ING INACCURATE PARTICULARS OF THE INCOME. ITA NOS.655 & 656(ASR)/2015 ASST. YEARS: 2004-05 & 2005-06 3 IN THE INSTANT CASE THE PENALTY ORDER U/S 271( 1) (C) R.W. EXPLANATION-1 WAS PASSED WHILE IMPOSING THE PENALTY @ 1 00 % OF THE TAX SOUGHT TO BE EVADED WHICH COMES TO RS.2,58,04,83 4/-. 4. FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE AS SESSING OFFICER, THE ASSESSEE CARRIED THE MATTER TO THE CIT(A)-2, AMRITSAR, WHO BY ITS ORDER DATED 08.09.2015 DELETED THE PENALTY BY SETTING ASIDE THE ORDER PASSED U/S 271 (1)(C) OF THE ACT BY HOLDING AS UN DER: ACCORDINGLY THE HONBLE ITAT, AMRITSAR BENCH, VIDE ORDER DATED 10.09.2015 INTERALIA IN THE CASE OF THE APPELLANT I N ITA NOS.636 & 637 (ASR)/2013 DECIDED THE APPEAL OF THE ASSESSEE F OR ASST. YEAR:2004-05 & 2005-06 FILED AGAINST THE COMMON ORD ER OF THE CIT(A) DATED 04.10.2013 ADJUDICATING THE CORE ISSUE OF EL IGIBILITY FOR TAX EXEMPTION U/S 11 R.W. SEC.2(15) IN FAVOUR OF THE AS SESSEE AND BOTH THE APPEALS IN ITA NOS.636 & 637 (ASR)/2013 WERE AL LOWED. SINCE, THE ISSUES INVOLVED IN THE SCRUTINY ASSESSM ENTS OF THE APPELLANT U/S 43(3) OF THE ACT FOR ASST. YEAR: 2004 -05 & 2005-06 HAVE BEEN DECIDED IN FAVOUR OF THE APPELLANT VIDE THE SA ID COMMON ORDER OF HONBLE ITAT, AMRITSAR DATED 10.09.2015, THEREFORE, THE PENALTY IMPOSED BY THE ASSESSING OFFICER FOR ASST. YEAR: 2004-05 & 2005-06 AT RS.2,58,04,834/- & RS.30,34,89,496/- RESPECTIVEL Y U/S 271(1) (C) OF THE ACT DOES NOT SURVIVE AND THE SAID PENALTY IS ACCORDINGLY DELETED. 5. THEREAFTER, FEELING AGGRIEVED AGAINST THE ORDER PASSE D BY THE LD. CIT(A), THE REVENUE DEPARTMENT PREFERRED THE INSTANT APPEALS ON THE GROUNDS AS MENTIONED IN PARA NO.2 OF THE ORDER. ITA NOS.655 & 656(ASR)/2015 ASST. YEARS: 2004-05 & 2005-06 4 THE LD. DR RELIED UPON THE ORDER PASSED BY THE ASSESSIN G OFFICER AND SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) IS LI ABLE TO BE REVERSED IN VIEW OF THE ORDER PASSED BY THE ASSESSING OFF ICER. 6. ON THE CONTRARY, IT WAS SUBMITTED BY THE LD. AR, SINC E ISSUE INVOLVED IN THE SCRUTINY ASSESSMENT OF THE APPELLANT OF T HE ASSESSEE U/S 143(3) OF THE ACT FOR THE RELEVANT ASSESSMENT YEARS HAVE ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE VIDE COMMON ORDER PASSED IN ITA NO.636 & 637(ASR)/2013 BY THIS HONBLE BENCH AT AMRITSAR ON 10.09.2015, THEREFORE, THE PENALTY IMPOSED BY THE AS SESSING OFFICER DOES NOT SURVIVE AND ACCORDINGLY LIABLE TO BE DELETED. 7. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTA NCES OF THE CASE AS IT REFLECTS FROM THE ORDERS AVAILABLE ON RECORD AS FILED BY THE ASSESSEE THAT THE ISSUE U/S 143 HAVE ALREADY BEEN DECIDED B Y THIS BENCH IN ITA NO.636 & 637(ASR)/2013 DATED 10.09.2015 IN FAVOUR OF THE ASSESSEE, THEREFORE, IN OUR CONSIDERED OPINION ONCE TH E QUANTUM ITSELF HAS BEEN DELETED AND / OR MAIN SUBSTANTIVE ISSUE HAS BEEN SETTLED IN FAVOUR OF THE ASSESSEE AND AS AGAINST THE DEPARTMENT, THEREFORE, THERE IS NO USE TO CARRY ON THE PENALTY PROCEEDINGS, HE NCE, THE PENALTY ITSELF IS LIABLE TO BE SET ASIDE AS DOES NOT SURVIVE WITHO UT ANY LEGS TO STAND. ITA NOS.655 & 656(ASR)/2015 ASST. YEARS: 2004-05 & 2005-06 5 IN CONCLUSION THE ORDER PASSED BY THE CIT(A) IS UPHELD AND THE APPEALS FILED BY THE DEPARTMENT STANDS DISMISSED 8. IN THE RESULT, THE APPEALS FILED BY THE REVENUE D EPARTMENT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.0 8.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:11.08.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER