VANITA SAMAJ, MUMBAI V. ASST DIT (E) II(2), MUMBAI

ITA 6694/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3141 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: F
• Next Hearing Date: 02-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-11-2013
• Court: TRIBUNAL
• Keywords: Benefit of exemption; Cancellation of registration
• Section: 143(3); 80G; 12A; 12AA; 2; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.6694/MUM/2013 ASSESSMENT YEAR: 2009-10 VANITA SAMAJ, VEER SAVARKAR MARG, DADAR (W), MUMBAI-400028 / VS. A DIT(E) II(2) 5 TH FLOOR, PIRMAL CHAMBERS, PAREL MUMBAI- 400012 (ASSESSEE) (REVENUE) P.A. NO.AATV9971G / ASSESSEE BY SHRI ASHOK PATIL (AR) / REVENUE BY SHRI G.M. DOSS (DR) ! ' # $ / DATE OF HEARING : 2/09/2015 ! # $ / DATE OF ORDER: 30/09/2015 ! / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEAL S)-1, MUMBAI DATED 21.08.2013 FOR THE ASSESSMENT YEAR 200 9-10, DECIDED AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING VANITA SAMAJ 2 OFFICER U/S 143(3) OF THE ACT. THE ASSESSEE HAS RAI SED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(A) [CIT(A)) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 7,12,578/- INCUR RED TOWARDS THE OBJECTS OF THE TRUST. 2. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(A)[CIT(A)] ERRED IN CONFIRMING THE DISALLOWANCE OF EXEMPTION OF RS. 3,8 76/- U/S 10 OF THE-INCOME TAX ACT, 1961. 3. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(A)[CLT(A)) ERRED IN CONFIRMING THE DISALLOWANCE ON ACCOUNT OF STATUTORY DEDUCTION OF RS. 8,79,256/- U/S 11(1){B) OF THE INC OME TAX ACT 1961. 4. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(A)[CIT(A)] ERRED IN CONFIRMING THE DISALLOWANCE OF EXEMPTION OF RS. 16,64,700/- U/S 11{1){D) OF THE INCOME TAX ACT, 196 1. 5. ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX(A)[CIT(A)] ERRED IN CONFIRMING THE DISALLOWANCE OF ACCUMULATION U/S 11( 2) OF INCOME TAX ACT, 1961, AMOUNTING TO RS.7,56,699/-. 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. DURING THE COURSE OF HEARING, LD COUNSEL OF THE ASSESSEE BROUGHT TO THE NOTICE OF THE BENCH THAT IN THIS CAS E REGISTRATION U/S 12A WAS CANCELLED BY THE DIRECTOR OF INCOME TAX (EXEMPTIONS). SUBSEQUENTLY, THE ASSESSEE HAD FI LED AN APPEAL BEFORE ITAT AGAINST THE AFORESAID ORDER OF L D DIT(EXEMPTIONS). THE HONBLE TRIBUNAL HAD ALLOWED T HE APPEAL OF THE ASSESSEE AND SAID ORDER PASSED BY THE LD DIT(EXEMPTIONS) WAS SET ASIDE BY THE TRIBUNAL, VIDE ITS ORDER DATED 26.02.2014 IN ITA NO.1034/MUM/2012. THEREAFTE R, ON 24.03.2015, THE COMMISSIONER OF INCOME TAX (EXEMPTI ON) MUMBAI HAS PASSED AN ORDER GIVING EFFECT TO AFORESA ID ORDER OF VANITA SAMAJ 3 THE TRIBUNAL, WHEREIN HE HAS RESTORED THE REGISTRAT ION OF THE ASSESSEE TRUST U/S 12AA OF THE INCOME TAX ACT, IN P URSUANCE TO THE ITATS ORDER, AS STATED ABOVE. COPIES OF ALL THESE ORDERS HAVE BEEN PLACED ON RECORD BY LD. COUNSEL. ON THE B ASIS OF THESE ORDERS IT WAS REQUESTED BY THE LD COUNSEL, TO GIVE FRESH OPPORTUNITY TO THE ASSESSEE, BEFORE THE ASSESSING O FFICER (HEREINAFTER CALLED AS AO). 3. ON THE OTHER HAND, LD DR HAS SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE SIDES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BEL OW AND HAVE ALSO GONE THROUGH THE COPIES OF THE ORDERS OF ITAT AND CIT(EXEMPTIONS), AS SUBMITTED BY THE LD COUNSEL. TH E BRIEF FACTS AS NOTED BY US FROM THE ASSESSMENT ORDER AND IMPUGNED ORDER OF LD CIT(A), ARE THAT ASSESSEE TRUST IS REGI STERED WITH DIRECTOR OF INCOME TAX (EXEMPTIONS) MUMBAI U/S 12A AND U/S 80G OF THE INCOME TAX ACT 1961. IN THE ASSESSME NT ORDER, THE ASSESSING OFFICER HAS NOTICED THAT AS PER TRUST DEED OF THE ASSESSEE, THE ASSESSEE TRUST HAS BEEN FORMED FOR TH E FOLLOWING OBJECTS. A) TO MAKE A COMMUNIST SOCIETY OF LADIES & KIDS TO FILL A INTEREST & LOVE INTO THEM FOR THE CO-OPERATI ON, TO DEVELOP THEM IN ALL FIELDS, TO SERVE TO PREPARE THE M INCLUDING THE CHANGES THE THEIR ARTS, PHYSICAL ACTIVITIES MENTAL AND MEMORY DEVELOPMENT EXCEPT THE POLITICS. B) TO START THE LIBRARY AND NEWSPAPERS READING FOR STUDY, LECTURES, OF PICNIC AND COMPETITION VANITA SAMAJ 4 ORGANIZATION, TO ORGANIZE INDIAN/FOREIGN GAMES FOR HEALTH & ENTERTAINMENT AND TO ORIGINATE THE HELP OF MEDICINES, SOME ARTS, COOK SCIENCE AND OTHER THINGS/COMMERCIAL EDUCATIONAL USEFUL FOR THE HOME AND TO ORGANIZE COMMERCIAL EDUCATION TO THE NON- FINANCIAL LADIES SO THAT THEY CAN START THE EARN MONEY. ALSO TO DEVELOP HANDICAPPED, TO WORK FOR ELDER FOR THEIR PHYSICAL & MENTAL HYPRIMUM AND ORGANIZE THE PROGRAMME LIKE BABY HOUSE. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE AO THAT THE ASSESEE HAS EARNED INCO ME BY CARRYING ON THE BUSINESS OF SPORTS MATERIALS, FLOUR MILL, MISCELLANEOUS EDIBLES AND GIVING HALL ON HIRE FOR M ARRIAGE, RENT AND INTEREST INCOME ETC. THE AO INVOKED THE PR OVISIONS OF SECTION 2(15) AND SECTION 11(4A) OF THE I.T. ACT, T O HOLD THAT ASSESSEE WAS CARRYING BUSINESS ACTIVITIES. FINALLY, THE AO NOTED THAT REGISTRATION OF THE ASSESSEE GRANTED U/S 12A HAS BEEN CANCELLED BY THE DIT(EXEMPTIONS)-MUMBAI VIDE O RDER DATED 15.12.2011 U/S 12AA(3) OF THE INCOME TAX ACT, 1961. KEEPING IN VIEW, THIS MATERIAL FACT IN MIND THE AO DENIED THE BENEFIT OF EXEMPTION TO THE ASSESSEE AND MADE DISAL LOWANCE IN THE ASSESSMENT ORDER AND COMPUTED THE TAXABLE INCOM E OF THE ASSESSEE TRUST. 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARN ED COMMISSIONER OF INCOME TAX (APPEAL){ HEREINAFTER RE FERRED TO AS LD CIT(A)} AND MADE DETAILED SUBMISSIONS. LD CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE, MAINLY ON THE GROUND, THAT THE ASSESSEE TRUST WAS NOT ELIGIBLE FOR EXEMPT ION U/S 11 OF THE INCOME TAX ACT FOR WANT OF REGISTRATION U/S 12A OF THE ACT. VANITA SAMAJ 5 7. THUS, THE BASIC PREMISE, OF BOTH THE LOWER AUTHO RITIES I.E. AO AS WELL AS LD CIT(A), IN REJECTING THE CLAIM OF THE ASSESSEE, WAS CANCELLATION OF REGISTRATION U/S 12A BY THE DIT(EXEMPTIONS)-MUMBAI. IT HAS BEEN OBSERVED BY US THAT THE ORDER OF DIT(EXEMPTIONS) HAS BEEN SET ASIDE BY THE ITAT AND CONSEQUENTLY REGISTRATION U/S 12A HAS BEEN RESTORED BY THE LD CIT(EXEMPTIONS) VIDE ITS ORDER DATED 24.03.2015. TH US, THERE IS A MATERIAL CHANGE IN THE BASIC PREMISE ADOPTED B Y BOTH OF THE LOWER AUTHORITIES IN DECIDING THE ISSUE AGAINST THE ASSESSEE. IN VIEW OF THE CHANGED POSITION, WE DEEM IT APPROPRIATE, TO SEND THIS MATTER BACK TO THE FILE O F THE AO TO CONSIDER THE WHOLE ISSUE AFRESH AND TO PASS A WELL REASONED ASSESSMENT ORDER, AFTER TAKING INTO CONSIDERATION T HE ORDER OF ITAT DATED 26.02.2014 AND ORDER OF LD. CIT(EXEMPTIO NS) DATED 24.03.2015. THE AO SHALL ALSO ADJUDICATE AFRE SH, THE ISSUE WITH REGARD TO APPLICABILITY OF PROVISIONS OF SECTION 2(15) AND 11(4A), AFTER TAKING INTO CONSIDERATION RELEVAN T LAW AND FACTS, AS WELL AS, ALL THE MATERIAL AND EVIDENCES AS MAY BE PLACED BY THE ASSESSEE TRUST, FOR WHICH THE AO SHAL L GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE TRU ST. THE ASSESSE TRUST IS ALSO DIRECTED TO EXTEND FULL CO-OP ERATION TO THE AO AND TO SUBMIT HIM REQUIRED DETAILS AND EVIDENCES , AS PER LAW. VANITA SAMAJ 6 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2015. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ' # / JUDICIAL MEMBER $ # / ACCOUNTANT MEMBER ! %' MUMBAI; & DATED : 30/09/2015 CTX? P.S/. .. ! %'&'( )(*& / COPY OF THE ORDER FORWARDED TO : 1. ()* / THE APPELLANT 2. +,)* / THE RESPONDENT. 3. - - ! . ( ( ) / THE CIT, MUMBAI. 4. - - ! . / CIT(A)- , MUMBAI 5. 12 +3 , - ($ 3 4 , ! %' / DR, ITAT, MUMBAI 6. 5 ' / GUARD FILE. ! / BY ORDER, ,1( + //TRUE COPY// +/, - (DY./ASSTT. REGISTRAR) , ! %' / ITAT, MUMBAI