DCIT , CC - 7(1), MUMBAI V. D.Y PATIL SPORTS ACADEMY, MUMBAI

ITA 6882/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6461 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 03-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL
• Keywords: Charitable institution
• Section: 12A; 264; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI G. MANJUNATH , ACCOUNTANT MEMBER ITA NO. 6882 / MUM . /201 8 ( ASSESSMENT YEAR : 20 14 15 ) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 7(1), MUMBAI . APPELLANT V/S D.Y. PATIL SPORTS ACADEMY OPP. MIG COLONY, ADARSH NAGAR WORLI, MUMBAI 400 020 PAN AAATD3102G . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI KAMAL MANGAL DATE OF HEARING 1 5 .01.2020 DATE OF ORDER 05.02.2020 O R D E R PER SAKTIJIT DEY. J.M. T HE AFORESAID APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29 TH JUNE 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3, MUMBAI, FOR THE ASSESSMENT YEAR 2014 15. 2. THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO THE DELETION OF DISALLOWANCE OF CARRY FORWARD OF DEFICIT AMOUNTING TO ` 9,32,09,946. 2 D.Y. PATIL SPORTS ACADEMY 3. B RIEF FACTS ARE, THE ASSESSEE IS A CHARITABLE TRUST AND HAS BEEN GRANTED REGISTRATION UNDER SECTION 12A OF THE ACT. FOR T HE YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2014, DECLARING NIL INCOME AFTER CLAIMING EXEMPTION UNDER SECTION 11 OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE IN THE IMPUGNED ASSESSMENT YEAR HAS INCURRED EXCESS EXPENDITURE OF ` 9,32,09,946, WHICH HAS BEEN CARRIED FORWAR D TO BE SET OFF AGAINST THE INCOME OF THE SUBSEQUENT YEAR. NOTICING THE ABOVE, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO JUSTIFY ITS CLAIM OF CARRY FORWARD. NOT BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER HELD THAT CARRY FORWARD OF EXCESS EXPENDITURE / DEFICIT / LOSS IS ALLOWED ONLY IN CASE OF BUSINESS OR PROFIT MAKING ENTITIES. THUS, ULTIMATELY, HE DISALLOWED ASSESSEES CLAIM OF CARRY FORWARD OF EXCESS EXPENDITURE/ DEFICIT AMOUNTING TO ` 9,32,09,946. THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. 4. THE LEARNED COMMISSIONER (APPEALS) HAVING NOTICED THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S INSTITUTION OF BANKING PERSONAL , [2003] 264 ITR 1 10 (BOM.) HAS ALLOWED SIMILAR CLAIM AND IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2010 11 AND 2011 12, THE TRIBUNAL HAS ALLOWED ASSESSEES CLAIM OF CARRY FORWARD OF EXCESS 3 D.Y. PATIL SPORTS ACADEMY EXPENDITURE/ DEFICIT , ALLOWED ASSESSEES CLAIM OF CARR Y FORWARD OF EXCESS EXPENDITURE / DEFICIT TO SUBSEQUENT ASSESSMENT YEAR. 5. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE DESPITE SERVICE OF NOTICE. THERE IS NO APPLICATION BY THE ASSESSEE SEEKING ADJOURNMENT EITHER. THEREFORE, W E PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, THE HON'BLE JURISDICTIONAL HIGH COURT I N INSTITUTION OF BANKING PERSONNEL (SUPRA), H AS HELD THAT EXCESS EXPENDITURE/ DEFICIT OF THE CURRENT YEAR CAN BE CARRIED FORWARD TO THE SUBSEQUENT ASSESSMENT YEAR FOR SETTING OFF AGAINST THE INCOME OF TH AT YEAR. IN FACT, THE REVENUE HAS ALSO NOT DISPUTED THE AFORESAID POSITION OF LAW DECLARED BY THE HON'BLE JURISDICTIONAL HIGH COURT WHICH IS EVIDENT FROM GROUND NO.(III) RAISED IN THE APPEAL MEMO. PERTINENTLY, AS OBSERVED BY THE LEARNED COMMISSIONER (APPEA LS), IDENTICAL ISSUE ARISING IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010 11 AND 2011 12 HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. THE AFORESAID FACTUAL POSITION HAS NOT BEEN CONTROVERTED BY THE REVENUE. IN VIEW OF THE AFORESAID, 4 D.Y. PATIL SPORTS ACADEMY W E DO NOT FIND ANY INFIRMITY IN THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE. GROUNDS ARE DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.02.2020 SD/ - G. MANJUNATH ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.02.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI