Lala Bhagwan Dass Educational Trust, Delhi V. ITO (Exemptions), Delhi

ITA 6741/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4030 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 22-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SH. G.D.AGRAWAL, HONBLE PRESIDENT AND SH.K.N.CHARRY, JUDICIAL MEMBER ITA NO. 6741/DEL/2015 (ASSESSMENT YEAR: 2 011-12) APPELLANT BY SH. AJIT GANDHI, CA RESPONDENT BY SH. ARUN KUMAR YADAV, SR.DR DATE OF HEARING 20 .0 9 .2017 DATE OF PRONOUNCEMENT 09 . 1 0 .2017 ORDER PER K.N.CHARRY, JUDICIAL MEMBER THIS APPEAL PREFERRED BY THE ASSESSEE CHALLENGING T HE ORDER DATED 17.11.2015 IN APPEAL NO. 310/2014-15 PASSING BY THE COMMISSION ER OF INCOME TAX (APPEAL) [IN SHORT CIT(A)]-40, NEW DELHI FOR 2011-12 ASSES SMENT YEAR FOR LEVYING THE PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 ( IN SHORT ACT). 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860 AND IS REGISTERED U/S 12AA(1) ON 09.02.2001, AND IS NOTIFIED U/S 80G(5)(VI) ON 26.08.2008 FOR THE PE RIOD FROM 01.04.2008 TO 31.03.2011. THE ASSESSEE FILED HIS RETURN OF INCOM E ON 27.09.2011 SHOWING THE INCOME AS NIL, AND DURING THE SCRUTINY, THE AO FOUN D THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.62,56,250/- AS DEVELOPMENT FUN D FROM THE STUDENTS AND THE SAME WAS TRANSFERRED TO CAPITAL ACCOUNT IN BALANCE SHEET WHEREAS IT SHOULD BE LALA BHAGWAN DASS EDUCATIONAL TRUST, A-52, JITAR NAGAR, OPP. KOTHI NO.299, GAGAN VIHAR, DELHI-110092. PAN-AAATL1870H VS ITO (EXEMPTION), TRUST WARD-IV, DELHI. (APPELLANT) (RESPONDENT) ITA NO. 6741/DEL/2015 PG. 2 INCLUDED IN THE TOTAL RECEIPTS. ACCORDINGLY THE AO ADDED THIS AMOUNT TO THE TOTAL RECEIPT AND OF THE ASSESSEE BEING IT IS PART OF FEE RECEIVED FROM STUDENTS AND MADE THE FINAL ASSESSMENT ORDER ON 19.03.2014. THE AO A LSO INITIATED THE PENALTY PROCEEDINGS ON ACCOUNT OF FILING OF INACCURATE PART ICULARS OF INCOME AND IMPOSED THE PENALTY OF RS.19,33,180/- U/S 271(1)(C) OF THE ACT. 3. APPEAL PREFERRED BY THE ASSESSEE WAS DISMISSED B Y THE LD.CIT(A) BY WAY OF IMPUGNED ORDER, HOLDING THAT BY TRANSFERRING THE AM OUNT OF DEVELOPMENT FUND RECEIVED FROM THE STUDENTS TO THE CAPITAL ACCOUNTS IN BALANCE SHEETS, THE ASSESSEE FURNISHED INACCURATE PARTICULARS AS SUCH LEVY OF PE NALTY IS JUSTIFIED. HENCE, THIS APPEAL FILED BY THE ASSESSEE CHALLENGING THE LEVY OF PENALTY. 4. IT IS AN ARGUMENT OF THE LD.AR THAT THERE IS NEI THER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS INASMUCH A S THE ASSESSEE HAD SUBMITTED THE FULL DETAILS OF THE RECEIPTS IN THE RETURN OF I NCOME AND ALSO DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, AS SUCH THE AO IS NOT J USTIFIED TO LEVY THE PENALTY MERELY BECAUSE THE SAID AMOUNT UNDER THE HEAD DEVE LOPMENT FUND WAS TRANSFERRED BY THE CAPITAL ACCOUNT IN THE BALANCE S HEET WHEREAS IT SHOULD BE INCLUDED IN THE TOTAL RECEIPTS. PER CONTRA, LD. DR SUPPORTED THE FINDINGS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ACT OF THE ASSESSEE IN TRANSFERRING THE DEVELOPMENT FUND TO THE CAPITAL ACCOUNT IN THE BALA NCE SHEET INSTEAD OF INCLUDED THE SAME IN THE TOTAL RECEIPTS AMOUNTS TO FURNISHIN G OF INACCURATE PARTICULARS. 5. WE HAVE CAREFULLY GONE THROUGH THE RECORDS IN TH E LIGHT OF THE CONTENTIONS ON OTHER SIDE. THERE IS NO DISPUTE AS TO THE FURNISHI NG OF DETAILS BY THE ASSESSEE IN THE RETURN OF INCOME. ONLY DISPUTE IS WHETHER THE DEVE LOPMENT FUND RECEIVED BY THE ASSESSEE FROM THE STUDENTS WAS NOT TO BE TRANSFERRE D TO THE CAPITAL ACCOUNT IN THE BALANCE SHEET BUT IT HAD TO BE INCLUDED IN THE TOTA L RECEIPTS. THE QUESTION IS ITA NO. 6741/DEL/2015 PG. 3 WHETHER THIS TREATMENT OF ACCOUNT WOULD PER SE AMOU NT TO FURNISHING ALL INACCURATE PARTICULARS. SO FAR AS ALL THE DETAILS ARE FURNISH ED BY THE ASSESSEE IN THE RETURN OF ACCOUNTS, MERELY BECAUSE THE AO MADE AN ADDITION OF THE DEVELOPMENT FUND TO THE TOTAL RECEIPT OF THE ASSESSEE TREATING IT AS A PART OF FEE RECEIVED FROM THE STUDENTS, IN OUR CONSIDERED OPINION, PER SE , DOES NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS. FURTHER, THE ASSESSEE FILED THE RETUR N OF INCOME SHOWING THE TOTAL INCOME AS NIL AND THE AO ALSO ASSESSED THE INCOME O F THE ASSESSEE AS NIL. IN JCIT VS CLASSIC INDUSTRIES LTD. [2017] 80 TAXMANN.COM 22 0 (SC) , THE HONBLE APEX COURT WHILE PLACING RELIANCE THE DECISION SUPPORTED IN VIRTUAL SOFT SYSTEMS LTD. VS CIT [2007] 159 TAXMAN 155 (SC) UPHELD THE JUDGEMENT AND ORDER DATED 27.07.2006 PASSED BY THE HIGH COURT OF GUJARAT BY WHICH THE HI GH COURT HAS HELD THAT NO PENALTY IS LEVIABLE U/S 271(1)(C) OF THE ACT, IF TH E INCOME DISCLOSED IN THE RETURN AND THE INCOME ASSESSED IS NIL. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE FIND IT DIFFICULT TO SUSTAIN THE PENALTY LEVIED AGAINST EH ASSESSEE. HENCE, WE DIRECT THE AO TO DELETE THE SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 TH OCTOBER, 2017. SD/- SD/- (G.D.AGRAWAL) (K.N.CHARRY) PRESIDENT JUDICIAL MEMBER *AMIT KUMAR* DATE:- 09.10.2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR ITAT NEW DELHI